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A TREATISE 


ON  THB 

LAW  OF  CITIZENSHIP 

IN  THE 

U^flTED  STA.TES 


TREATED  HISTORICALLY 


PEENTISS  WEBSTEE 

OP  THE  BOSTON  BAR 


ALBANY,  N.  Y. 

MATTHEW  BENDER,  LAW  BOOK  PUBLISHER 
1891 


Entered  according  to  act  of  Congress,  in  the  year  eighteen  hundred  and  ninety-one, 
By  MATTHEW  BENDER, 

In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


AVEED,  PARSONS  AND  COMPANY, 
PRINTERS  AND  ELECTROTYPERS, 
ALBANY,  N.  Y. 


S^onovaMje  ^jcixjamm  ^x:atxMitx  gxxtXeic, 


OF  MASSACHUSETTS, 

WHO,  IN  SEPTEMBER,  1890,  COMPLETED  ONE-IIALF  A CENTURY  OF  ACTIVE 
PRACTICE  OP  THE  LAW  IN  THE  COURTS  OF  MANY  STATES,  AND  IN 
THE  FEDERAL  COURTS  OP  THE  UNITED  STATES,  THESE 
PAGES  ARE  RESPECTFULLY  INSCRIBED  BY  THE 


AUTHOR. 


PREFACE. 


The  distinction  between  citizens  proper,  that  is,  the  constit- 
uent members  of  the  political  sovereignty,  and  subjects  of  that 
sovereignty  who  are  not,  therefore,  citizens  is  recognized  in  the 
best  authorities  of  the  public  law/^  This  distinction  is  true.  The 
further  question  of  who  are  and  who  are  not  citizens  has  its  dif- 
ficulties, Accept  the  definition  of  citizenship  to  be  the  enjoy- 
ment of  equal  rights  and  privileges  at  home,  and  equal  protec- 
tion abroad,  and  consider  the  question  from  this  standpoint, 
from  which  alone  it  should  be  treated,  for  we  have  no  law  in  the 
United  States  which  divides  our  citizens  into  classes  or  makes 
any  difference  whatever  between  them.  We  then  discover  the 
importance  that  the  equal  rights  of  citizens  when  at  home  should 
maintain  when  abroad,  because  questions  as  to  citizenship  are 
determined  by  municipal  law  in  subordination  to  the  law  of  na- 
tions. Therefore,  the  value  of  citizenship  should  not  be  under- 
estimated. 

Every  individual  should  have  some  central  point  from  which 
he  emanates  and  to  which  he  returns,  where  he  is  clothed  with 
citizenship  and  the  consequent  enjoyment  of  all  rights  and  priv- 
ileges which  citizenship  confers. 

The  modern  ways  of  communication  from  one  country  to  an- 
other, the  necessity  of  temporary  and  permanent  sojourn  by 
foreigners  in  this  country,  and  by  American  citizens  in  foreign 
countries  growing  out  of  trade  and  commercial  relations,  require 
that  a citizen  of  the  United  States  should  understand  his  exact 
relation  to  this  government,  and  his  relations  to  foreign  govern- 
ments; and  to  reach  this  understanding,  the  question  of  citizen- 
ship should  be  discussed  with  the  light  of  the  existing  practice, 
not  solely  from  the  standpoint  of  the  municipal  statutes  of  this 


VI 


PREFACE. 


country,  but  more  especially  from  the  standpoint  of  the  practice 
of  the  international  common  law  to  which  our  own  practice  has 
materially  contributed. 

In  the  early  days  of  our  republic  the  principle  was  laid  down 
to  welcome  all  who  seek  homes  in  this  country,  and  to  deny  it  to 
none.  The  right  of  emigration  and  consequent  expatriation  by 
means  of  naturalization  was  recognized.  Aliens  born  have  ever 
found  homes  in  our  republic  ; generations  have  succeeded  them 
and  engaged  in  the  development,  assisted  in  the  progress,  identi- 
fied themselves  with  our  institutions,  and  shared  in  the  pride  of 
our  greatness. 

In  the  days  of  the  Eoman  republic  it  was  the  proud  honor  of  a 
Koman  citizen  to  state  at  home  and  abroad  civis  Romanus  sum; 
so  it  should  be  in  this  country  for  an  American  to  main- 
tain, ‘‘I  am  an  American  citizen.^^ 

Therefore,  the  elements  which  enter  into  the  inquiry  should 
be  considered. 

The  first  inquiry  should  be  the  means  by  which  citizeuship  is 
acquired;  whether  by  descent  or  naturalization;  in  either  one  of 
these  two  ways  citizenship  is  generally  conferred  except  in  cases 
of  adoption  by  marriage. 

Municipal  rules  have  value  within  the  territory  of  their  juris- 
diction, but  have  no  extra-territorial  effect. 

To  illustrate:  In  our  country  there  may  be  a municipal  rule, 
that  the  children  of  subjects  of  that  country  and  the  children  of 
aliens  born  within  the  territory  of  that  country  are  by  virtue  of 
birth  within  the  territory  subjects  of  that  country.  The  same 
rule  may  prevail  in  a neighboring  country.  Again,  in  both  these 
countries  there  may  be  municipal  rules  by  which  the  children  of 
subjects  of  the  respective  countries  born  abroad  follow  the  citi- 
zenship of  the  parents.  It  is  evident  that  a confiict  as  to  citizen- 
ship cannot  be  avoided  in  these  cases. 

For  example:  Assume  England  and  the  United  States  to 
have  the  same  rules.  A child  of  a citizen  of  the  United  States 
born  in  England  is  an  English  subject,  and  the  statute  of  the 
United  States  asserts  that  the  children  of  Americans  born  abroad 
are  Americans.  Yet  these  rules  have  governed  until  quite  a re- 
cent date  in  both  countries.  For  example:  in  1858  the  Earl  of 


PREFACE. 


Vll 


Malmesbury  expressed  the  following  opinion  in  Walewaski’s 
case:  If  Walewaski  had  been  born  in  France,  of  English  pa- 

rents, and  had  voluntarily  returned  to  France,  he  would  have 
been  a British  subject  in  England,  but  he  would  not  have  been 
entitled  to  British  privileges  or  protection  in  France  as  against 
the  country  of  his  actual  birth  or  domicile. 

These  rules  are  the  outgrowth  of  municipal  statutes,  and,  as 
such,  involve  the  question  of  citizenship,  in  continuous  conflict. 

This  should  be  avoided,  and  the  practice  of  modern  days  will 
show  the  impracticability  of  the  theory  of  the  derivation  of 
citizenship  from  birth  on  this  or  that  inanimate  piece  of  ground, 
whether  in  the  country  of  one’s  parents  or  on  foreign 
soil.  Such  a theory  had  its  origin  in  the  feudal  law,  on  which 
the  principles  of  this  country  were  not  grounded,  and,  while  it 
may  be  argued  that  it  finds  place  in  the  English  common  law,  it 
must  not  be  forgotten  that  our  ancestors  brought  with  them, 
and  claimed  as  their  birthright  its  general  principles,  and 
adopted  that  portion  of  it  only  which  was  applicable  to  their  sit- 
uation.” 

The  conclusion  reached  in  the  following  discourse  will  be  that 
citizenship  is  conferred  by  descent. 

The  other  means  of  acquisition  of  citizenship  is  by  naturaliza- 
tion. Under  our  practice  no  rule  governs  by  which  an  inquiry 
is  possible  into  the  relations  of  the  applicant  to  his  country  of 
origin.  It  cannot  be  doubted  on  the  authorities  : first,  that 
every  subject  has  obligations  to  perform  to  his  country;  and 
second,  that  the  obligations  should  be  such  that  they  can  be  le- 
gally discharged.  This  done  and  the  departure  of  the  citizen 
from  his  country  of  origin  to  seek  a new  home  elsewhere  should 
be  permitted. 

Great  Britain,  since  1870,  has  recognized  the  right  of  free  ex- 
patriation by  her  subjects.  France  gives  to  her  citizens  the  au- 
thorization to  be  naturalized  abroad. 

Germany  countenances  the  right  of  departure  when  in  good 
faith  to  found  homes  in  foreign  lands  after  the  fulfillment  of 
existing  obligations. 

The  other  countries  of  Europe  do  not  dispute  the  legal  right 
of  their  subjects  to  become  naturalized  citizens  abroad  when  done 


Vlll 


PREFACE. 


lawfully  with  a due  observance  of  the  qualifications  which  they 
have  enacted  to  govern  in  such  cases,  with  the  exception  of  Rus- 
sia and  Turkey,  in  which  countries  an  immunity  peculiar  to 
those  governments  is  enjoyed,  by  which  the  restriction  on  the 
exercisd  of  the  right  is  held  to  be  a matter  of  imperial  favor. 

The  South  American  republics  recognize  the  right  in  accord- 
ance with  the  practice  existing  among  civilized  governments. 

There  is,  however,  involved  in  this  principle  of  expatriation  a 
very  important  point  — that  of  acting  in  good  faith.  Citizenship 
is  not,  and  should  not  be  held  to  be,  a matter  of  convenience,  to 
be  taken  on  and  thrown  off  to  meet  existing  emergencies; 
nor  should  it  be  resorted  to  as  a supposed  means  by  which  to 
evade  obligations  under  which  any  individual  is  to  either  his 
country  of  origin  or  country  of  adoption.  The  very  element  of 
departure  from  one  country  and  the  acquisition  of  citizenship 
in  another  should  be  governed  by  good  faith  to  the  respective 
authorities  of  the  countries  with  which  the  individual  has  to  do 
in  the  transfer  of  his  allegiance. 

It  is  difficult  to  find  a case  where  good  faith  has  governed  the 
action  of  the  individual,  that  the  question  of  citizenship  has 
arisen  to  cause  the  citizen  inconvenience  or  trouble. 

In  the  Christ  Ernst  case  the  rule  is  laid  down  to  be  — the  nat- 
ural right  of  every  free  person  who  owes  no  debt  and  is  guilty 
of  no  crime,  to  leave  the  country  of  his  birth  in  good  faith,  and  for 
an  honest  purpose,  is  incontestible.  It  will  be  found  in  the  practice 
that  the  intent  is  more  often  controlled  by  the  acts  of  the  citi- 
zen than  by  his  professions  or  loudly  expressed  oral  declarations, 
in  particular  with  reference  to  the  loss  of  citizenship  acquired 
by  naturalization  upon  return  to  the  country  of  origin. 

This  has  grown  out  of  our  naturalization  treaties  made  and 
entered  into  with  several  European  governments  and  South 
American  republics  in  1868  and  1870.  Eor  example:  A former 
citizen  of  the  United  States  becomes  a naturalized  citizen  of  the 
Republic  of  Ecuador;  he  returns  to  the  country  of  his  nativity; 
he  remains  two  years,  and,  acting  under  the  naturalization  treaty, 
the  government  of  the  United  States  claims  that  he  has  re- 
nounced his  citizenship  in  Ecuador  by  a continued  two  yeaiV 
residence  in  his  country  of  origin;  this  claim  he  denies,  and  pro- 
duces evidence  of  his  intent  to  remain  a citizen  of  Ecuador. 


PREFACE. 


IX 


In  a similar  case  with  Germany  no  provision  is  made  for  the 
production  of  evidence  of  his  intent,  and  the  word  ^‘’may’^  in 
the  treaty  has,  in  the  practice  with  Germany,  been  construed  to 
mean  shall.”  Merely  no  right  is  given  to  defend  against  the 
claim  of  the  government. 

In  a similar  case  with  Great  Britain  a change  depends  on  the 
citizen’s  own  volition;  if  a former  British  subject  has  become  a 
naturalized  citizen  of  the  United  States,  he  must  comply  with 
the  naturalization  laws  of  Great  Britain  to  divest  himself  of  his 
American  citizenship. 

The  rule  laid  down  by  Mr.  J ustice  Marshall  is  clear  and  ex- 
plicit: ‘^If  an  American  citizen  can  expatriate  himself  he  divests 
himself  by  the  very  act  of  expatriation  as  well  of  the  obligations 
as  of  the  rights  of  a citizen . He  becomes  ijpso  facto  an  alien,  and 
citizenship  once  lost  cannot  be  recovered  by  residence,  but  he 
must  go  through  the  formula  prescribed  by  law  for  the  natural- 
ization of  an  alien.” 

In  the  English  practice,  under  the  Naturalization  Act  of  1870, 
the  alien  who  applies  for  English  citizenship  is  granted  a quali- 
fied certificate  of  naturalization,  which  answers  well  the  purpose 
of  citizenship  in  England  when  at  home,  but  when  abroad,  in 
particular  in  the  country  of  origin,  does  not  carry  with  it  that 
protection  which  English  citizens  enjoy  when  abroad,  who  are 
such  by  descent  or  native  born,  as  the  term  is  used  in  England. 
This  precautionary  measure  is  taken  with  a view  to  avoid  con- 
flict of  authority  as  between  the  country  of  origin  and  the 
country  of  adoption.  In  cases  where  the  alien  departed  from 
his  country,  leaving  obligations  unfulfilled,  illegally  or  without 
authorization,  to  be  naturalized  abroad,  or  whatever  the  pre- 
requisites may  have  been,  which  have  not  been  complied  with,  the 
English  qualified  certificate  would  seem  to  be  granted,  depend- 
ent upon  these  conditions  precedent  to  make  the  citizenship  com- 
plete and  insure  protection  from  the  English  government . It 
may  go  so  far  in  the  practice  as  to  be  in  effect,  when  the  condi- 
tions have  been  avoided,  entirely  nugatory  to  a qualified  natural- 
ized alien  in  England  when  abroad,  and  in  particular  when  in 
the  country  of  origin. 

In  re  Bourgeoise,  a Frenchman  came  to  reside  in  England,  and 

B 


X 


PREFACE. 


in  1871  obtained  the  usual  qualified  certificate  of  naturalization 
as  a British  subject,  but  did  not  obtain  from  the  French  gov- 
ernment the  necessary  authority  to  become  a naturalized  citizen 
abroad.  In  1880,  he  married  an  English  subject  and  returned 
to  France  to  reside  and  died  there.  Held,  that  at  the  time  of 
his  death  he  was  a French  citizen. 

Such  a relation  to  a government  must  be  very  unsatisfactory 
in  form  and  in  fact.  Eegardless  of  the  question  of  good  faith, 
and  when  the  applicant  has  acted  in  every  regard  in  perfect  good 
faith,  he  receives  his  naturalization  certificate  with  qualifications. 

Citizenship  qualifiedly  conferred  cannot  have  the  effect  of 
making  the  citizen  a constituent  member  of  the  body  politic,  of 
constituting  him  a particle  of  the  whole,  with  equal  rights  and 
privileges  at  home  and  equal  protection  when  abroad  with  the 
members  of  the  body  politic,  who  constitute  the  whole.  It  leads 
to  a classification  abroad  at  least  if  not  at  home,  and  is  not 
much  removed  from  the  grant  in  the  Middle  Ages  of  trading 
certificates  to  aliens. 

This  classification  does  not  maintain  in  this  country  nor  in 
other  European  countries. 

It  will  further  be  seen  from  the  practice  that  the  question  of 
citizenship  is  often  left  in  an  unsettled  condition  by  the  author- 
ities when  brought  up  for  consideration,  when  the  naturalized 
citizen  returns  to  the  country  of  origin  for  either  temporary  or 
permanent  purposes,  where  the  residence  is  extended  over  the 
terminus  of  time  of  two  years  mentioned  in  the  naturalization 
treaties.  In  particular  is  this  the  case  with  Germany,  where 
rather  than  go  into  the  rationale  of  the  question  a peremptory 
order  issues  to  leave  the  country  for  the  reason  that  the  presence 
of  the  citizen  is  inimical  to  the  interests  of  the  country. 

This  act  is  within  the  scope  of  the  regulation  of  internal  af- 
fairs, and  unless  it  is  carried  so  far  in  its  application  as  to  place 
the  United  States  on  a footing  different  from  that  of  comity  be- 
tween nations,  or  deny  to  it  the  rights  of  a favored  nation  at 
peace  with  Germany,  remonstrance  would  be  futile. 

There  is  another  point  out  of  which  have  grown  many  com- 
plications, which  is  the  expression  that  a citizen  can  be  clothed 
with  a dual  nationality:  that  is,  in  one  country  a citizen  of  that 


PREFACE. 


XI 


country,  and  when  in  another  country  a citizen  of  the  other 
country.  For  example:  when  in  the  United  States,  a citizen  of 
the  United  States,  and  when  in  Germany  a citizen  of  Germany. 
This  was  held  in  StenkauleFs  case  by  the  authorities  of  the 
United  States. 

Stenkauler  was  born  in  the  United  States,  of  German  parents 
naturalized  in  the  United  States,  who  returned  to  Germany 
while  the  son  was  a few  years  old.  Under  the  treaty  of  nat- 
uralization it  was  held  by  the  German  government  that  the 
father  by  two  years'’  continued  residence  in  Germany  had  re- 
nounced his  acquired  citizenship  in  the  United  States,  and 
thereby  the  citizenship  of  the  son  was  changed,  and  he  was  held 
for  military  service.  Protection  from  the  United  States  was  de- 
nied him,  and  a dual  nationality  alleged,  to  the' effect  that,  upon 
return  of  the  son  to  the  United  States,  he  could  take  on  his 
citizenship  in  this  country. 

The  modern  authorities  fail  to  sustain  this  proposition. 

It  will  be  seen  that  the  subject  is  important,  and  its  import- 
ance has  increased  of  late  years.  Oases  have  been  discussed  at 
length  when  they  have  arisen,  and  been  determined,  some  with 
more  and  some  with  lesser  comment. 

The  purpose  of  the  following  pages  is  to  lead  up  historically 
to  the  standpoint  by  which  citizenship  in  its  international  sense 
should  be  judged.  For  it  is  quite  clear,  as  was  said,  by  Mr.  Jus- 
tice Miller,  that  there  is  a citizenship  of  the  United  States,  and 
a citizenship  of  a state  which  are  distinct  from  each  other,  and 
with  state  citizenship  this  work  has  nothing  to  do,  only  so  far  as 
it  is  embodied  in  the  question  of  citizenship  of  the  United  States. 

The  writer  hopes  to  have  determined  this  standard,  and  if  his 
labors  have  convinced  a few  of  his  readers,  he  will  feel  his  work 
has  not  been  in  vain. 


CONTENTS. 


Citizenship  historically  considered,  1.  Citizenship  among  the  Romans, 
3.  EJffect  of  the  invasion  of  the  Barbarians  on  Roman  citizenship,  4. 
Governments  established  by  the  Barbarians,  5.  Relations  between  the 
governments  of  different  states  in  the  Middle  Ages,  6.  Relations  of  citi- 
zens to  government,  7.  Classification  of  citizens,  9.  The  right  of  expat- 
riation, 11.  The  rule  of  Grotius,  13.  The  rule  of  Puffendorf,  14.  The 
rule  of  Bynkerschoek,  15.  The  rule  of  Foelix,  15.  The  rule  of  Ruther- 
forth,  16.  The  rule  of  Vattel,  16.  The  rule  of  Heffter,  16.  The  rule  of 
Bluntschli,  17.  The  rule  of  Frist,  17.  Tlie  rule  of  DeMartens,  17.  Local 
rules  on  citizenship  in  the  United  States,  18.  Theory  and  practice,  20. 
Effect  of  French  Revolution  and  Declaration  of  Independence  of  the 
United  States  on  the  feudal  theory  of  acquisition  of  citizenship,  31. 
Forms  of  government,  34.  Treaties,  39.  Relation  of  citizen  to  country, 
41.  Obligations,  46.  Existing  obligations,  47.  What  constitutes  full 
membership  of  a society,  48.  Right  of  emigration,  49.  Man  is  either 
a citizen  or  an  alien,  49.  Man  becomes  a member  of  society  by  positive 
laws,  49.  By  descent  and  naturalization,  50.  English  rule  of  immuta- 
ble allegiance,  51.  Not  adopted  in  the  United  States,  51.  Practice 
under  the  English  rule  with  foreign  countries,  53.  Practice  with  the 
United  States,  63.  English  rule  never  recognized  in  the  United  States 
in  its  practice,  91.  Citizenship  acquired  by  descent  the  rule  in  France, 
106.  Austria,  106.  Prussia,  107.  Sweden  and  Norway,  107.  Switz- 
erland, Denmark,  Holland,  Portugal,  Italy,  Belgium,  Spain,  107.  The 
rule  of  descent  as  shown  from  the  practice  of  the  United  States  with 
Germany,  109.  With  France,  117.  With  Austria,  120.  With  Switz- 
erland, 122.  With  Italy,  123.  With  China,  124.  Citizenship  by 
naturalization  in  the  United  States,  129.  The  right  of  expatriation,  130. 
Declaration  of  intent,  131.  Prerequisite  to  citizenship,  132.  Effect  of 


XIV 


CONTENTS. 


V 

naturalization  on  minor  children,  133.  Effect  of  naturalization  on  the 
wife,  138.  Fraudulent  naturalization,  143.  The  definition  of  expatri- 
ation, 144.  Expatriation  recognized  by  treaties,  148.  Eight  of  protec- 
tion of  naturalized  citizens  when  abroad,  151.  Rule  applicable  upon 
return  to  country  of  origin,  152.  Obligations  unfulfilled  and  existing 
in  country  of  origin  before  emigration,  158.  Military  service  obliga- 
tory, 159.  Eight  to  protection  of  citizens  of  United  States  when 
abroad,  162.  Long  residence  abroad  may  work  loss  to  right  of  protec- 
tion, 164.  Non-payment  of  taxes,  166.  Revenue  and  income  tax,  167. 
Refusal  to  extend  protection  does  not  work  loss  of  citizenship,  169. 
Naturalized  citizens,  170.  Rule  contemplates  residence  in  country  of 
adoption,  171.  Rights  of  naturalized  citizens  under  different  naturali- 
zation treaties,  172.  With  Hessen-Darmstadt,  172.  Wurtemburg,  172. 
Baden,  173.  No  German  union,  173.  Bavaria,  173.  Norway  and 
Sweden,  174.  Denmark,  174.  Austria,  Belgium,  Equador,  175.  The 
practice  under  the  naturalization  treaties,  188.  Responsibility  on  the 
Executive  of  the  United  States,  188.  Right  of  expulsion,  242.  Prac- 
tice under  the  right  of  expulsion,  242.  Practice  with  countries  with 
which  the  United  States  have  no  treaty  of  naturalization,  250.  Who 
are  aliens,  289.  Owe  a local  allegiance,  290.  Rights  of  property,  292. 
Right  of  claim  for  damages  to  person  and  property,  292.  Citizenship 
not  conferred  by  adoption  on  alien  children,  295.  ‘ Citizenship  confer- 
red on  alien  women  by  marriage,  295.  '^"Citizenship  of  married  women 
after  divorce,  299.  ' When  in  widowhood,  299.  Citizenship  conferred 
for  service  in  armies  of  the  United  States,  301.  Passports,  301.  Right 
to  protection  under  passport,  302.  Claims  of  citizens  of  United  States 
for  damages  from  foreign  governments,  305. 


TABLE  OF  CASES  CITED  AND  DISCUSSED. 


Page. 

Amther 9 Opinions  of  Attorney- Generals  . 147 

Anderson F.  R.  of  U.  S.,  1886,  p.  310 240 

Argumiborn Eng.  Par.  Papers 62 

Ardut F.  R.  of  U.  S.,  1875,  p.  569 192 

Arlich “ 1871,  p.  888 221 

Baab “ 1877,  p.  246 197 

Bagur “ 1886,  p.  806 167 

Batzell “ 1881,  p.  1028 258 

Baumer “ 1878,  pp.  210,  228. . 200 

Bausen “ 1886,  p.  310 240 

Beckman “ 1875,  p.  571 194 

Berude “ 1879,  p.  371 205 

Blesh “ 1877,  p.  247 116 

Block “ 1879,  p.  373 211 

Boig “ 1879,  p.  741 268 

Boetcher “ 1882,  p.  188 206 

Bourry “ 1883,  pp.  7,  12 121 

Bosdet Eng.  Par.  Papers 58 

Boynton F.  R.  of  U.  S.,  1882,  p.  212 246 

Brink “ 1882,  p.  187 206 

Burnato Wheaton  Int.  Law 141 

Castellan F.  R.  of  U.  S.,  1875,  p.  579 190 

Cedergreen “ 1882,  p.  488 218 

Cohn i “ 1874,  p.  447 189 

Colsky “ 1881,  p.  1029 258 

Cordes “ 1882,  p.  188 207 

Cormick “ 1882,  p.  212 246 

Cranz “ 1886,  p.  27  171 

Crossthwaite Eng.  Par.  Papers 62 

Dalton F.  R.  of  U.  S.,  1882,  p.  212 246 


xvi  CASES  CITED  AND  DISCUSSED. 


Page. 


Daly 

F.  R of  U.  S., 

1882,  p.  212 

246 

Drevet 

(< 

1885,  pp.369,  373..^ 

118 

Esrsrers 

u 

1879,  p.  369  . 

203 

Emden 

< ( 

1885,  pp.  803,  809.. 

122 

Foichat 

u 

1884,  pp.  145,174.. 

253 

Fogarty 

(< 

1882,  p.  212 

246 

Fresh 

< < 

1875,  p.  572 

196 

Foreman 

61 

Feinkopf 

F.  R of  U.  S., 

, 1885,  pp.  5,  27 

221 

Gabriel 

1881,  p.  475 

215 

Gad 

i i 

1885,  pp.  419,  423.  . 

242 

Ganzenmuller 

< ( 

1878,  p.  216 

201 

Gehres 

u 

1881,  p.  474 

215 

Geist 

(( 

1885,  p.  423 

232 

George 

U 

1886,  pp.  317,  327. . 

218 

Gerding 

( ( 

1875,  p.  570 

193 

Geweoke 

c c 

1875,  p.  569 

191 

Goldner 

u 

1881,  p.  1028 

258 

Graffenburg 

u 

1875,  p.  569 

191 

Greiser 

i i 

1885,  p.  813 

110 

Grubel 

u 

1875,  pp.489,  534.. 

189 

Gutowski 

185 

Hagerdorn 

F.  R of  U.  S., 

, 1881,  p.  475 

206 

Hans 

u 

1886,  p.  365 

110 

Hansding 

(( 

1885,  p.  394 

109 

Hart 

( ( 

1882,  p.  212 

246 

Held 

il 

1884,  p.  209 

208 

Heinrich 

il 

1873,  pp.  78,  79. . . . 

120 

Henkes 

4< 

1879,  p.  371 

205 

Hirsch 

II 

1877,  p.  248 

197 

Horstman 

“ 

1882,  p.  190 

207 

Humbert 

(( 

1875,  p.  570 

194 

Jacobson 

It 

1877,  p.  248 

197 

Jacob 

<l 

1883,  p.  145 

117 

Jantzen 

u 

1875,  p.  572 

196 

Jepsen 

It 

1886,  p.  310 

240 

Jessen 

II 

1886,  p.  310 

240 

Jones. 

II 

1882,  p.  346 

287 

Jeppen 

II 

1886,  p.  310 

240 

CASES  CITED  AND  DISCUSSED. 


XVll 


Page. 

F.  R.  of  U.  S.,  1879,  p.  369 204 

“ 1883,  p.  391 217 

...  198 


Klagges 

Klan 

Kloss “ 1877,  p.  249 

Knocke  Wheaton  Int,  Law,  1840.. 

Koszta  “ 

Kriegel F.  R.  of  U.  S.,  1877,  p.  249 


180 

141 

198 


Kroemer 

n 

1877,  p.  247 

116 

Landan  

1886,  p.  10 

171 

Largomorisino 

li 

1883,  p.  204 

251 

Lebrone 

(; 

1886,  pp.  301,  303.. 

256 

Lemberger 

(1 

1885,  pp.  429,  436.. 

117 

Levinson 

<( 

1877,  p.  249 

198 

Mammelsdorf 

(( 

1877,  p.  250 

199 

McCormick 

(( 

1884,  p.  219 

245 

McSweeney  ; 

< ( 

1882,  p.  212 

246 

McEnery 

u 

1882,  p.  212 

246 

Mely 

u 

1877,  p.  250 

209 

Meyer 

. . Wheaton  Int.  Law  

185 

Montaga. 

, ..  Eng.  Par.  Papers 

56 

Montaya 

i i 

56 

Muller 

. . F.  R.  of  U.  S., 

1881,  p.  476 

205 

Mumbour 

u 

1875,  p.  569 

192 

Newmarch 

ii 

1875,  p.  571 

195 

Nicolsen 

(( 

1886,  p.  310 

240 

O’Connor 

u 

1882,  p.  212 

246 

Oench 

i( 

1853,  p.  423 

158 

O’Mahoney 

(( 

1882,  p.  212 

246 

Pepin 

ll 

1873,  p.  261 

256 

Pearson 

u 

1885,  p.  172 

123 

Ranke  

185 

Rainals 

. . Eng.  Par.  Papers 

56 

Reewarts 

. . F.  R.  of  U.  S., 

1886,  p.  310 

240 

Reich  art 

u 

1884,  p.  213 

243 

Rohlffs 

u 

1886,  p.  310 

240 

Rowe 

u 

1882,  pp.  1,  3 

250 

Roi 

(( 

1884,  p.  208 

208 

Rosenwald 

(( 

1881,  p.  474 

214 

Rosenthal 

u 

1875,  p.  572 

195 

XVIII  CASES 

CITED  AND  DISCUSSED. 

Page. 

Saab 

F.  R.  of  U. 

S.,  1886, 

P- 

374 

142 

Salamouski 

u 

1887, 

P- 

251 j. 

199 

Sandt 

F.  R.  of  U. 

S.,  .... 

184 

Santos 

(< 

1886, 

P- 

254 

222 

Schang 

<( 

1881, 

P- 

473 

214 

Schweitzer 

(( 

1881, 

pp.  30,  52 

220 

Scola 

a 

1877, 

P- 

251 

200 

Sharboro 

(( 

1871, 

P- 

392 

123 

Sheibert 

u 

1883, 

P- 

344 

115 

Sigbjornseu 

u 

1881, 

P- 

344 

219 

Slattery 

(( 

1882, 

P- 

212 

246 

Smith 

1879, 

P. 

815 

268 

Speck 

n 

1878, 

P- 

841 

123 

Steinkauler 

113 

Stern 

143 

Stewart 

61 

Taxacher 

F.  R.  of  U. 

S.,  1884, 

PP-  9,  10 

220 

Topaz 

u 

1874, 

P- 

890 

296 

Verdelet 

(( 

1883,  pf 

>.  276,  285,  118, 

256 

Vertu 

60 

Villinger 

F.  R.  of  U. 

S.,  1877, 

P- 

252 

200 

Vopel 

( ( 

1875, 

P- 

590 

193 

Walner 

n 

1879, 

P- 

371 

205 

Walsh 

(( 

1882, 

P- 

212 

142 

Walweski 

Eng.  Par.  Papers 

58 

Warren 

70 

Weick 

F.  R.  of  U. 

S.,  1875, 

P- 

570 

193 

Weigand 

1882, 

P- 

187 

115 

White 

n 

1882, 

p. 

212 

246 

Wilczynski 

F.  R.  of  U. 

s., 

259 

Wohlgemuth 

(( 

1875, 

P* 

571 

194 

Wurgletts 

(( 

1881, 

pp.  30,  52 

122 

1879,  p.  368 203 

1886,  p.  723 263 


Zimmer 
Zuber, . 


TABLE  OF  AUTHORITIES  CITED. 


Page. 

Aberdeen,  Lord,  on  English  citizenship 61 

Attorney- Generals  of  U.  S.,  opinion,  Vol.  I,  p.  275 133,  292 

do  do  II,  p.  356 101 

do  do  II,  p.  253 289 

do  do  VII,  p.  229 289 

do  do  VII,  p.  495 126 

do  do  YIII,  p.  139,146,151,245,  292 

do  do  VIII,  p.  140 93 

do  do  IX,  p.  62....  147,  152,  245 

do  do  IX,  p.  69 146 

do  do  IX,  p.  92 

do  do  IX,  p.  356..  .49,  76,  89,  93 

146,  152 

do  do  IX,  p.  373. 98 

do  do  X,  p.  328 98 

do  do  XII,  p.  7 299 

do  do  XII,  p,  190 71 

do  do  XIV,  p.  154 302 

do  do  XIV,  p.  295  . . .147,  178,  292 

do  do  XIV,  p.  402 71 

do  do  XV,  p.  15 113 

do  do  XV,  p.  114 134 

do  do  XV,  p.  599 300 

Bancroft,  George,  on  expatriation 221,  222 

Barnard,  John  P.,  on  citizenship 184,  185 

Bayard,  Thomas  F.,  on  citizenship,  110,  112,  118,  121,  123,  140,  142,  143 

145,  171,  191,  232,  238,  243,  302 

Bernard,  Montague,  on  citizenship  . . 100 

Bismarck,  Count,  on  expulsion 240,  241 

Black,  Jeremiah,  on  citizenship 93,  146,  147,  158,  169 

Blaine,  James  G.,  on  citizenship . 121,  162,  191,  249,  261 

Blackford,  Vol.  1,  p.  2,  on  common  law 75,  93 

Bluntschli, int.  law.... 6,  17,  105,  111,  114,  168,  202,  209,  210,  237,  291 
Buchanan,  James,  on  citizenship .248,  290 


XX 


AUTHORITIES  CITED. 


Page. 

Burlamaqui 15 

Buscli,  Dr 238,  239 

Bynkerschoek 15 

Calvo,  int.  law 296,  297 

Cass,  Lewis,  on  protection  of  citizens. . . 93,  143,  159 

Cicero  on  citizenship 3,  114 

Clarendon,  Lord,  on  English  citizenship 57,  62,  67 

Cockburn  on  nationality 106,  114,  299 

Coke,  Lord,  on  allegiance 101 

Cushing,  Caleb,  on  citizenship  88,  93,  146 

De  Martens  17 

Evarts,  Wm.  M.,  on  citizenship  - 112,  120,  135,  249,  260,  304 

Everett,  Edward,  on  citizenship 159,  185,  242,  302 

Ferry,  Jules,  on  French  citizenship 255 

Fish,  Hamilton,  on  citizenship,  123,  124,  143,  149,  150,  161,  166,  169 
170,  187,  191,  242,  295,  297,  298,  300,  302,  304 

Field,  int.  code 104,  114,  298 

Foelix,  private  int.  law 15,  104,  111,  114,  267,  296 

Frelinghuysen  on  citizenship,  109,  110,  112,  113,  118,  133,  166,  169,  171 

172,  191,  233,  235,  251,  253,  297,  298 

Frist  on  citizenship 17 

Furguson  on  citizenship. 105 

Foreign  Relations  of  United  States,  1871,  p.  888 168,  220 

do  do  1873,  pp.  78,  79 120 

do  do  261 256 

do  do  1874,  p.  413..., 299 

do  do  447 189 

do  do  ' 455 ..188 

do  do  1875,  p.  449 172 

do  do  489 190 

do  do  569 191 

do  do  570 192 

do  do  571 193 

do  do  572  196 

do  do  579 190 

do  do  1877,  p.  246 197 

do  do  247..... , 116 

do  do  248 198 

do  do  249 198 

do  do  250  199,209 


AUTHORITIES  CITED.  xxi 

Page. 

Foreign  Relations  of  United  States,  1877,  p.  251 199 

do  do  252 200 

do  do  1878,  pp.  210,  228 .....200 

do  do  216 201 

do  do  1879,  p.  368 201 

do  do  369 203 

do  do  371...  205 

do  do  373 211 

do  do  1881,  pp.  30,  52  122,  219 

do  do  473 214 

do  do  1881,  p.  474 215 

do  do  475 206,216 

do  do  476 205 

do  do  1028,  1029 258 

do  do  1882,  p.  187 115,  206 

do  do  188 206 

do  do  190 207 

do  do  212 246 

do  do  219 245 

do  do  240 248 

do  do  346 287 

do  do  488 218 

< do  do  1883,  p.  145 117 

do  do  285 256 

do  do  344 115 

do  do  391  217 

do  . do  1884,  pp.  9,  10 219 

do  do  208 207 

do  do  209 207 

do  do  213 244 

do  do  1885,  pp.  5,  27 220 

do  do  172 123 

do  do  423 242 

do  do  429,436 117 

do  do  440 241 

do  do  803,  809 122 

do  do  1886,  p.  254 221 

do  do  303 257 

do  do  325 218 

do  do  723 264 

do  do  775  284 

do  do  864 284 


Xxii  AUTHORITIES  CITED. 

Page. 

Gajus  institutes 2 

Granville,  Lord,  on  treaties 40 

Grenville,  Lord,  on  naturalization  in  United  States. . . 71,  76 

Griers,  M.  de,  on  Israelites  in  Russia 261 

Grotius * 13^  14 

Halleck,  international  law 217,  224,  294,  300 

Harcourt,  Sir  Vernon,  on  origin  of  citizenship 72,  91,  103 

Heffter,  European  international  law 16,  105,  291 

Hyde,  Baron,  on  English  naturalization 67 

Jefferson,  Thomas,  on  expatriation 76,  290 

Jefferson,  Thomas,  on  allegiance 76 

Kent,  Chancellor,  commentaries 74,  93,  149 

Kasson  on  citizenship 238 

Lawrence’s,  Wheaton,  international  law 74,  93,  295 

Lieber,  Franz,  on  citizenship 264 

Lowell,  John  R.,  on  citizenship  in  England  249 

Malmesbury,  Earl  of,  on  English  citizenship 58 

Manteuffel,  Baron,  on  citizenship 182,  186 

Marcy,  William  L 92,  143,  158,  242 

Marshall,  Chief  Justice,  on  expatriation  78 

McLeod,  Alexander,  on  citizenship 88 

Mercier,  M.,  on  French  citizens.  293,  294 

Motley,  John  Lathrop,  on  citizenship 67 

Nesselrode,  Prince,  on  claims  of  aliens 292 

Palmerston,  Lord,  on  English  citizenship 54,  55,  58,  60 

Peel,  Sir  Robert 53 

Phillimore,  international  law 110,  114,  248,  291,  299,  303 

Porter  on  payment  of  taxes 167 

Puffendorf 14 

Russell,  Lord  John,  on  English  citizenship 56,  57,  58 

Rutherforth 16 

Seward,  William  H.,  on  growth  of  Ameriea 34 

Seward,  F.  W.,  on  citizenship 123 

Story  on  the  conststution 74 

Typhonius,  on  expatriation 2 

Twiss,  Travers 100 


AUTHORITIES  CITED.  xxiii 

Page. 

Vattel,  law  of  nations .16,  85,  103,  105,  115,  148 

Von  Bar,  int.  law 104,  111,  145 

Webster,  D.,  on  citizenship 143,  233,  290 

Westlake 104 

Wharton  on  legitimacy. . . 124 

Wheaton 180,  267 

William,  Emperor,  on  independence 35 

Williams,  on  citizenship 146,  147 

Woolsey,  international  law 224,  238,  296,  297 

Wright,  Silas 186 


DECISIONS  OF  COURTS  CITED- 


Page. 

Ainslie  v.  Martin,  6 Mass 83 

Bailey’s  case,  2 Sawyer,  200  301 

Caignett  v.  Pettit,  2 Dali.  234  165 

Carlisle  v.  United  States,  16  Wallace,  148 48,  87,  290 

Fitch  V.  Webber,  6 Hare,  51 71 

In  re  Bourgoise,  41  English  Law  Reporter,  Chancery  Division,  30. . 291 
In  re  Willoughby,  30  English  Law  Reporter,  Chancery  Div.,  324. . . . 291 

Inglis  V.  Trustees,  etc.,  3 Peters.  74,  92,  93 

Jansen  v.  Vrom  Christina,  Bee  Adm 145 

Kelley  v.  Owen,  7 Wallace,  496  298 

Lamer  v,  Mican,  112  U.  S.  452 112 

Marbury  v.  Madison,  1 Cranch,  137-170 . . 188 

Murray  v.  Schooner  Betry,  2 Cranch  78 

Murray  v.  McCarthy,  2 Mumford 79 

Neal  V.  Delaware,  103  U.  S.  370 93 

Parker  V.  United  States,  1 Peters,  293 188 

Porter  v.  Leroy,  1 Yeates  (Penn.),  371 145 

Santissima,  Trinidad,  7 Wheaton,  283  93,  121,  145,  147 

Shanks  v.  Dupont,  3 Peters 74,  90 

Spratt  V.  Spratt,  4 Peters,  393 143 

Strauder  v.  West  Virginia,  100  U.  S.  303 93 

Talbot  of  Jansen,  3 Dali.  383 145 

Taylor  v.  Carpenter,  3 Story,  458 289 

United  States  v.  Eliason,  16  Peters,  291 189 

United  States  v.  Freeman,  3 Howard,  556 189 

Walcot  V.  Botfield,  1 Kay.  534 189,  236 

Wheaton  et  al.  v.  Peters  et  al.,  8 Peters,  650  188 

Wilcox  V.  Jackson,  10  Peters,  498 188 

Williams  case,  Whart.  St.  Trials 145 


THE  LAW  OF  CITIZENSHIP. 


CITIZENSHIP  HISTORICALLY  CONSIDERED. 

Rome,  througliout  her  rise  and  progress,  manifested 
her  uncontrollable  thirst  for  empire.  The  persever- 
ance of  her  citizens  amid  discouraging  reverses  and 
ultimate  success  over  her  enemies,  won  for  her  the 
pinnacle  of  greatness.  All  nations  flocked  to  the 
“ Eternal  City  ” as  the  center  of  civilization ; she 
dictated  to  the  then  known  world;  she  made  for  it 
the  laws  and  extended  to  all  the  freedom  of  rights 
which  had  been  unknown  to  these  nations  in  the 
relations  which  had  governed  them  as  deriving  power 
through  an  earthly  prince,  from  Odin,  or  relying  upon 
the  mandates  of  their  Druids.  They  had  no  writers 
to  record  either  their  origin  or  their  principles  of  law ; 
therefore,  none  have  come  to  us.  They  were  known 
to  the  Romans  as  barbarians ; in  comparison  to  the 
Romans  they  were  considered  ignorant ; they  lived 
under  the  guidance  of  their  chiefs  as  wandering 
tribes,  constantly  at  war  with  each  other ; they  lived 
upon  the  milk  and  flesh  of  their  cattle  and  seldom 
cultivated  the  ground.  These  people  the  Romans 
conquered,  and  over  their  territories  to  the  banks  of 
the  Rhine  and  Danube,  through  Spain  to  Africa,  and 
1 


2 


THE  LAW  OF  CITIZENSHIP 


across  to  Britannia  extended  the  power  of  Rome. 
With  them  went  the  principles  of  the  Pandects, 
a body  of  laws  grafted  on  experience  and  well 
adapted  to  the  people  of  that  day.  Famous  jurists 
and  orators  expounded  its  principles ; they  became  the 
foundation  principles  of  the  laws  of  the  civilized 
world. 

The  earliest  dissertations  on  the  question  of  citizen- 
ship are  found  among  the  Avritings  of  the  Romans. 

By  them  from  time  to  time  the  rights  of  citizens  of 
Rome  have  been  discussed.  Not  alone  the  rights 
as  members  of  the  body  politic,  but  also  the  rights  of 
aliens  to  become  members  of  the  body  politic,  and  the 
rights  of  members  of  the  body  politic  to  dissolve 
membership  and  depart  to  become  members  of  another 
body  politic. 

The  relation  of  members  to  the  Roman  body  politic 
was  based  on  the  principle  of  jus  naturale,  of  which 
the  definition  as  laid  down  by  Gajus,  was  : jus  natu» 
rale  est  quod  natura  omnia  animalia  docuit.  Within 
this  definition  was  comprised  man  in  his  natural  state ; 
it  was  by  man  that  the  body  politic  was  organized, 
and  in  entering  the  organization  with  his  fellow  men, 
man  followed  the  exercise  of  his  natural  rights, 
and  became  an  ingredient  of  the  society  of  which  he, 
with  others,  became  members. 

The  organization  formed  or  the  state  created  as  of 
man  and  by  man,  man  was  not  so  incorporated  into 
the  body  politic  that  he  could  not  depart ; such 
a restriction  was  not  placed  by  him  on  his  nature, 
that  he  must  forever  remain  a member  of  the  society 
of  which  he  became  a member. 


IN  THE  UNITED  STATES. 


3 


Typhonius  wrote,  “ It  is  free  to  every  man  to  choose 
the  state  of  which  he  will  be  a member.” 

Although  in  the  early  days  of  Rome,  they  alone 
could  call  themselves  Roman  citizens  who  were  free 
born  and  born  in  Rome,  yet  very  soon  thereafter 
foreigners  were  admitted  to  citizenship  by  authority 
of  the  legislative  body. 

Later,  as  Rome  advanced  in  her  conquest  of  the 
neighboring  states,  to  these  states  the  legislative 
authorities  conferred  charters  by  which  the  citizens  of 
such  states  were  admitted  to  Roman  citizenship  and 
their  former  citizenship  was  abolished. 

In  Rome  the  inhabitants  were  either  free,  pere- 
grines or  slaves ; they  were  either  citizens  or  they 
were  not  citizens  ; the  slaves  were  in  the  power 
of  the  citizens,  and  these  citizens  had  the  right  to 
make  free  or  emancipate  their  slaves,  and  such  as 
they  emancipated  became  freedmen,  but  by  the  act  of 
emancipation  in  itself,  citizenship  was  not  acquired. 
It  was  the  being  born  of  freed  men  which  conferred 
the  citizenship  after  the  act  of  emancipation  was 
extended.  Notwithstanding  this  rule,  the  legislative 
authorities  could  confer  citizenship  on  such  slaves  as 
were  emancipated  by  Roman  citizens. 

There  were  many  inhabitants  of  Rome  who  were 
not  citizens.  They  were  known  as  peregrini,  and  en- 
joyed the  privileges  of  Roman  citizens  with  the  excep- 
tion of  the  suffragium,  or  right  of  suffrage.  This 
right  was  conferred  on  such  peregrini  as  chose  to  be- 
come citizens  by  act  of  the  legislature. 

Cicero  lays  down  the  rule,  ^Hhat  every  man  ought 
to  be  able  to  retain  or  renounce  his  rights  of  member- 


4 


THE  LAW  OF  CITIZENSHIP 


ship  of  a society,”  and  further  adds,  “ that  this  is  the 
firmest  foundation  of  liberty.” 

Under  this  the  Romans  received  all  who  came  and 
forced  none  to  remain  with  them. 

EFFECT  OF  THE  INVASION  OF  THE  BARBARIANS  ON  ROME 

After  the  downfall  of  Rome  and  its  consequent  loss 
of  power,  the  principles  of  jus  naturale  as  had  been 
known  throughout  the  empire,  gave  way  to  the  prin- 
ciples of  feudalism  as  introduced  by  the  invaders. 

They  brought  with  them  their  own  principles  of 
government  and  disavowed  the  principles  of  the  in- 
habitants of  the  countries  which  they  conquered.  The 
conquest  was  complete  and  extended  to  all  portions 
of  the  empire.  Not  alone  the  conquerors,  but  also 
the  conquered  sought  stability  of  government  for  the 
enjoyment  of  life,  happiness  and  prosperity. 

The  conquerors  came  as  wandering  tribes,  governed 
by  a leader  to  whom  all  followers  owed  homage  and 
fealty,  and  settled  with,  and  in,  the  homes  of  a people 
whom  they  had  reduced  to  subjection.  The  same 
fealty  and  homage  was  demanded  of  the  subjected 
Romans  as  was  demanded  of  the  followers  of  the  in- 
vading princes. 

EFFECT  OF  THE  INVASION  OF  THE  BARBARIANS  ON  OTHER 
PORTIONS  OF  EUROPE. 

Wheresoever  the  wandering  tribes  from  the  north 
of  Europe  established  themselves,  by  conquest  or 
otherwise,  they  took  with  them  imitatively  the  same 
relation  of  subject  to  prince.  Whether  it  was  to  the 
south,  southwest  or  to  the  west  that  they  wandered, 
the  same  principles  and  relations  were  enforced. 


IN  THE  UNITED  STATES. 


5 


GOVERNMENTS  ESTABLISHED. 

The  invaders  having  conquered  both  the  people  and 
their  lands,  organized  their  governments,  as  being  in  a 
prince  who  was  all  powerful  over  his  subjects.  The 
relation  as  between  man  and  man  and  his  relation  to 
the  government  was  forced  and  involuntary.  The 
natural  rights  of  man  as  being  in  man  were  disavowed. 

INTERCOURSE  BETWEEN  THE  STATES. 

As  had  been  the  custom  when  the  empire  was  ex- 
tant, for  its  citizens  to  trade  with  citizens  in  the  other 
portions  of  the  empire,  so  after  the  invasion  it  became 
equally  as  necessary,  as  between  the  subjects  of  the 
different  new  states  which  were  founded  on  the  ruins 
of  the  empire. 

Therefore  the  subjects  of  one  prince  must  resort  to 
domains  of  neighboring  princes  for  purposes  of  trade. 
The  common  law  which  governed  was  that  every  sub- 
ject must  owe  allegiance  to  some  prince,  in  order  to 
insure  the  subject  protection  when  abroad.  The  al- 
legiance was  held  to  be  indissoluble  and  could  not  be 
thrown  off  at  the  will  of  the  subject.  Yet  the  protec- 
tion was  not  at  all  times  extended  by  a prince  to  his  sub- 
jects when  abroad.  It  became  very  much  a question  of 
greater  strength  in  one  than  in  another ; so  much  so 
that  only  the  stronger  prince  could  extend  protection 
to  his  subjects  when  within  the  domain  of  a neighbor- 
ing prince.  With  the  growth  of  time,  the  necessities 
of  trade  enforced  temporary  and  permanent  sojourns 
by  the  subjects  of  one  prince  in  the  country  of  an- 
other prince.  This  led  to  a recognition  of  the  right 
of  subjects  to  depart  from  the  territory  of  their  prince. 


6 


THE  LAW  OF  CITIZENSHIP 


This  came  from  force  of  circumstances  growing  out  of 
the  inability  of  weaker  princes  to  protect  their  sub- 
jects as  against  more  powerful  princes.  It  could  not 
be  done  without  the  consent  of  the  prince.  The  rela- 
tion was  personal  and  must  be  dissolved  by  permission. 

THE  ACT  OF  DEPARTURE  OR  PERMISSION. 

The  act  of  departure  by  which  a subject  threw  off 
his  allegiance  to  his  prince  and  to  which  the  prince 
gave  his  assent  was  ceremonious.  The  ceremony  was 
different  in  different  countries.  In  some  countries  the 
departure  was  attended  with  ceremonies  such  as  im- 
plied disgrace ; in  others  the  departure  was  with  the 
good  wishes  of  the  prince. 

The  general  rule  was  as  follows  : The  emigrant  was 
accompanied  by  a delegate  of  the  prince  with  his 
companions  and  fellow  subjects  to  a cross  road,  where 
led  a way  to  each  of  the  four  corners  of  mother  earth, 
and  there  the  delegate  announced  to  the  emigrant  pub- 
licly, that  the  prince  absolved  him  from  the  bond  of 
allegiance,  and  gave  to  him  his  liberty,  and  as  evidence 
of  it,  proclaimed  : “ De  quattuor  viis  ubi  volueris  am- 
bulare  liberam  habere  potestatem.”  Bluntschli  Staats- 
recht,  vol.  2,  p.  504.  The  emigrant  thereupon  went 
upon  the  way  which  he  had  chosen,  and  commenced 
his  journey  to  the  domain  of  some  other  prince. 

In  some  states  there  were  certain  preliminaries  with 
which  the  emigrant  complied  before  he  was  taken  to 
the  cross  way.  After  he  had  announced  his  wish  to 
migrate,  the  public  crier  called  the  man  and  openly 
stated  : The  man  who  lives  here,  in  this  village  and 
thinks  he  can  find  occupation  elsewhere  better  than 


IN  THE  UNITED  STATES. 


7 


here,  may  withdraw  to  that  better  place,  but  first  pay 
to  our  lord  all  damage  and  loss,  and  no  one  shall  in- 
quire further  about  him.” 

In  other  states,  the  act  of  departure  was  made  a 
matter  of  court  proceedings : the  emigrant  having  ex- 
pressed his  wish  to  absolve  himself  of  his  allegiance 
to  his  prince,  was  brought  into  court.  The  court  cen- 
tarius  struck  his  spear  three  times  upon  the  ground 
and  called,  Hear ! hear  ! hear  ! Is  there  a man  sub- 
ject to  this  high  court,  who  cannot  submit  to  its  law, 
then  he  shall  first  pay  our  prince,  then  the  Christian 
church,  then  the  common  man,  and  let  the  fire  in  his 
house  go  out  with  the  setting  sun.  The  common  man 
shall  then  load  his  goods  on  his  wagon  and  bring  them 
to  the  common  square,  where  will  come  our  gracious 
prince.  And  two  of  our  lord’s  servants  shall  dismount 
and  lend  help  to  the  poor  man  when  starting  on  his 
journey  by  a push  to  the  hind  wheels  of  his  wagon.” 

The  relation  of  subject  to  prince  was  personal,  and 
emigration  was  only  possible  upon  permission  given. 
This  was  primarily  essential  to  the  acquisition  of  a 
similar  relation  to  a foreign  prince  when  the  emigrant 
settled  in  a foreign  country. 

DEPARTURE  WITHOUT  ASSENT  OF  THE  PRINCE. 

The  act  of  departure  was  either  with  or  without  the 
intent  to  return.  No  departure  was  legal  unless  it 
was  known  to  the  prince.  The  many  personal  services 
which  were  owed  by  the  subjects  to  their  princes  ren- 
dered it  necessary  that  the  presence  or  absence  of  the 
subject  should  be  matters  of  record.  For  this  reason, 
the  departure  of  a subject  without  the  intent  to  return 


8 


THE  LAW  OF  CITIZENSHIP 


was  attended  with  ceremonies,  such  as  to  impress  the 
remaining  subjects.  The  departure  for  purposes  of 
trade  was  by  certificate  ; these  certificates  were  recog- 
nized or  not  recognized  according  to  the  likes  or  dis- 
likes of  the  prince  in  whose  territory  the  subject 
found  himself. 

Other  than  without  intent  to  return  or  by  certificate 
the  departure  could  not  be  legally  made.  Subjects  of 
one  prince  in  the  territory  of  another  with  intent  or 
without  intent  to  return,  and  with  no  certificate  from 
their  prince  for  identification  were  regarded  with 
suspicion,  treated  as  men  with  no  rights  and  often 
reduced  to  servile  work.  Upon  subsequent  return  to 
the  territory  of  their  prince,  if  the  departure  was  in 
time  of  peace,  the  subject  was  denied  all  rights ; if  in 
time  of  hostilities,  he  was  regarded  as  a deserter.  It 
was  the  universal  custom  that  the  subjects  of  every 
prince  should  be  able  to  identify  themselves  in  legal 
form,  when  in  the  territories  of  other  princes.  For  it 
was  well  recognized,  that  the  duties  which  such 
subjects  owed  to  their  princes  were  similar,  conse- 
quently that  no  man  had  the  right  to  be  abroad 
unless  with  the  assent  of  his  prince. 

MILITARY  SERVICE. 

The  stringency  with  which  these  princes  enforced 
their  demands  on  their  subjects,  was  of  necessity 
relaxed,  as  intercourse  for  purposes  of  trade  became 
more  important  for  the  welfare  of  the  principalities. 
The  act  of  departure  was  attended  with  less  ceremony, 
and  the  going  and  coming  between  the  inhabitants  of 
the  numerous  principalities  became  more  general. 


IN  THE  UNITED  STATES. 


9 


The  prince,  in  order  to  maintain  his  dignity,  enjoined 
upon  his  subjects  the  performance  of  military  duty, 
and  although  all  were  not  called  upon  to  do  this  duty, 
yet  the  liability  remained  that  they  might  be.  This 
remained  as  the  duty  which  the  subjects  must  not 
avoid  without  the  sanction  of  the  prince.  It  was 
a vestige  of  former  authority  in  the  form  of  absolutism 
over  the  subject.  It  was  an  obligation  arising  from 
fact  of  birth  as  a subject  of  the  prince  within  the 
domain  of  the  prince.  The  rule  was  general  and 
applicable  to  all  subjects. 

THE  CLASSES. 

Aside  from  the  grades  of  nobility  as  established  by 
the  different  princes  for  and  among  their  courtiers, 
and  leaders,  either  in  a military  or  civic  capacity, 
there  remained  two  general  classes  for  the  subject  not 
classed  among  the  nobility. 

There  was  the  commercial  class  and  the  yeomanry. 
The  necessity  of  the  interchange  of  goods,  wares  and 
merchandise,  established  the  trading  class,  which  was 
beneath  the  dignity  of  the  nobility.  It  came  into 
greater  importance  with  the  growth  of  time,  with  the 
increase  in  population  and  the  demands  of  the  people, 
which  it  was  imperative  should  be  fulfilled  and  could 
only  be  done  by  subjects  who  saw  fit  to  devote  them- 
selves to  such  occupations  as  would  meet  these  wants. 
Whatever  commodities  could  be  furnished  by  one 
principality  were  wanted  in  other  principalities,  and 
so  in  return,  this  necessitating  the  existence  of  some 
class  which  could  interchange  these  commodities  and 
carry  on  in  detail  all  that  was  essential  to  effect  pur- 
2 


10 


THE  LAW  OF  CITIZENSHIP 


chase,  transportation  and  sale  from  one  principality  to 
another. 

To  accomplish  this  trading,  certificates  were  given 
for  temporary  sojourn  in  foreign  countries. 

The  yeomanry  still  remained  attached  to  the  soil, 
there  to  perform  their  work,  subject  to  such  obliga- 
tions and  duties  of  tenure  as  the  lord  of  the  manor 
imposed  on  them  as  tenants.  These  duties  were 
manifest  and  of  such  a nature  that  they  could  not 
be  readily  put  off.  Although  in  the  case  of  the 
yeomanry  the  tie  of  allegiance  was  no  stronger  than  it 
was  with  the  commercial  class,  yet  the  departure  in- 
volved the  dissolution  of  subordinate  relations  as 
between  landlord  and  tenant,  aside  from  that  fealty 
which  all  subjects  owed  to  the  prince  of  the  princi- 
pality. This  rendered  the  departure  of  the  tenant 
yeoman  more  cumbersome  than  was  the  departure  of 
the  trader,  because  the  subordinate  duties  to  the  land- 
lord must  be  legally  dissolved,  in  order  that  the 
departure  of  the  yeoman  should  work  no  detriment  to 
the  interests  of  the  landlord ; in  many  instances  the 
dissolution  of  these  subordinate  ties  was  attendant 
with  extreme  inconvenience,  which  rendered  the 
departure  of  a yeoman  almost  impossible. 

For  example,  in  case  of  homage,  where  the  tenant  had 
ungirt  himself,  and  uncovered  his  head,  and,  with  his 
lord  sitting,  had  knelt  before  him,  on  both  knees,  and 
the  lord  holding  his  hands,  he  had  said : I become 
your  man  from  this  day  forward,  of  life  and.  limb,  and 
of  earthly  worship,  and  unto  you  shall  be  true  and 
faithful  and  bear  to  you  faith  for  the  tenements  that  I 
hold  of  you  saving  the  faith  that  1 owe  under  our 


IN  THE  UNITED  STATES. 


11 


sovereign  lord.”  This  constituted  a most  honorable 
service. 

There  were  other  services  less  honorable.  There 
was  escuage,  by  which  the  tenant  was  to  do  service 
for  a specified  time  abroad  with  the  lord.  There  was 
knight  service  involving  wardship  and  marriage. 
There  was  socage,  which  was  a service  not  defined 
other  than  knight  service.  There  was  villenage, 
which  was  servile  service. 

In  cases  of  rent  service,  the  departure  was  more 
easy  for  reason  of  its  being  comparatively  free  from 
personal  duties  and  allegiance,  which  was  exacted  in 
other  services. 


THE  RIGHT  OF  DEPARTURE. 

The  sanction  of  the  prince  was  essential  to  the 
exercise  of  the  right.  That  is,  the  departure  in  itself 
was  not  punishable;  it  was  the  departure  without  his 
consent  which  was  punishable.  The  right  of  depart- 
ure was  recognized  as  a right  in  and  of  man ; but  at 
the  same  time  it  could  not  be  exercised  legally  by  the 
subject  without  the  assent  of  the  prince,  under  whom 
the  subject  lived,  and  to  whom  he  occupied  a personal 
relation. 

THE  PRINCIPLE  INVOLVED  IN  THE  ACQUISITION  OF  CITI- 
ZENSHIP IN  THE  MIDDLE  AGES. 

The  acquisition  of  citizenship  in  a society,  whether 
by  membership  as  one  of  many  who  formed  a particu- 
lar society  or  by  subsequent  admission  to  membership 
in  the  society  after  its  formation,  carries  within  it  the 
loss  of  citizenship.  The  right  was  regarded  as  a per- 
sonal right.  Each  and  every  society  had  its  autono- 


12 


THE  LAW  OF  CITIZENSHIP 


mous  prescriptions  by  whicb  the  membersbip  Jn  tbe 
society  was  acquired  and  lost.  This  was  governed  by 
rules  which  went  to  the  manner  of  acquisition  and  loss 
of  the  citizenship  without  denying  the  right  in  itself. 
These  rules  were  different  and  more  or  less  restrictive, 
yet  withal  did  not  deny  the  existence  of  the  right  as 
being  in  man,  nor  did  they  prevent  absolutely  the  ex- 
ercise of  the  right. 

One  prerequisite  was  essential,  namely  : the  legal 
release  from  the  society  of  which  one  was  a member. 
Then  followed  the  acquisition  of  a new  membership. 
It  is  not  in  all  respects  clear  what  the  exact  status 
was  of  the  citizen  during  the  interim  between  the  loss 
of  one  citizenship  and  the  acquisition  of  a new  citizen, 
ship  in  another  society,  beyond  the  rule  which  seemed 
to  govern  quite  generally  that  each  prince  was  held  to 
the  exercise  of  a supervision  over  his  subjects  owing 
to  the  personal  relation  existing  between  them  where- 
soever they  might  be  whether  rightfully  beyond  the 
confines  of  the  principality  or  not. 

This  relation  was  in  many  respects  so  exact  that 
until  an  absolute  change  in  citizenship  had  been 
effected  it  must  have  continued. 

The  corelative  right  to  the  jus  albinagii  by  which 
the  prince  gathered  a fine  from  the  estates  left  by  the 
subjects  of  other  princes  on  property  within  his  prin- 
cipality, the  so-called  gabella  hereditaria,  by  which  he 
gathered  a fine  from  the  estates  left  by  the  subjects  of 
other  princes  in  other  principalities  and  which  de- 
scended to  his  subjects  in  his  principality,  could  not 
have  been  forfeited  by  the  prince  until  the  change 
was  absolute  so  far  as  it  affected  the  rights  of  the 


IN  THE  UNITED  STATES. 


13 


subject  making  the  change.  This  was  a general  rule, 
and  was  the  common  law  which  governed  in  most 
principalities,  and  was  a right  of  which  the  princes 
were  very  jealous,  as  a source  of  income  to  them. 
Subsequent  to  the  release  from  the  relation  to  his 
prince  the  subject  would  seem  to  have  still  continued 
in  relations  to  his  prince,  notwithstanding  the  release 
until  the  change  of  citizenship  was  perfected.  In 
order  to  perfect  the  change,  there  were  further  requi- 
sites : first,  evidence  of  good  moral  character ; second, 
evidence  that  the  subject  had  enjoyed  the  rights  of 
citizenship  under  his  former  prince  as  contradistin- 
guished from  servile  labor;  and,  third,  evidence  either 
for  reason  of  property,  professional  calling,  or  knowl- 
edge of  some  trade,  that  he  was  able  to  support  him- 
self and  his  family. 

In  case  the  subject  seeking  the  change  was  unable 
to  meet  these  requirements  which  were  conditions 
precedent  to  his  acquisition  of  new  citizenship  which 
would  seem  to  imply  the  stigma  of  crime  or  pauper- 
ism, he  was  remanded  to  his  former  prince,  and  the 
change  could  not  be  made. 

THE  RULE  OF  GROTIUS. 

Unless  there  is  an  express  prohibition,  or  a custom 
to  the  contrary,  having  the  force  of  a convention,  the 
right  to  emigrate  may  be  fully  and  freely  exercised. 
This  rule,  he  founds  on  the  natural  obligation  of 
preserving  oneself  which  prevails  in  every  agreement, 
and  whoever  submits  to  a government  does  so  solely 
for  his  owm  good. 

The  rule  and  the  explanation  indicate,  first,  that 


14 


THE  LAW  OF  CITIZENSHIP 


government  is  founded  in  agreement  as  between  man 
and  man  for  the  good  of  each ; and,  second,  that  the 
right  to  leave  one  government  and  go  to  live  under 
another,  can  be  restricted  only  by  convention,  to 
which  convention  the  party  who  seeks  to  exercise  the 
right  of  emigration  must  be  a party ; consequently,  he 
must  have  restricted  the  exercise  of  the  right  by  his 
own  act  and  by  convention  is  bound  by  it. 

This  rule  thus  laid  down  by  Grotius  recognized  the 
natural  right  of  man  and  was  in  conflict  with  the  phil- 
osophy of  the  times  as  applied  to  governments  then 
existing. 

In  the  first  place,  right  became  known  as  a power 
and  no  conception  of  it  was  recognized  except  as  at- 
tached to  man  ; and  second,  the  source  of  the  right 
was  alleged  to  be  in  pure  reason  which  was  the  exter- 
nal, immutable  and  universal  law  under  this  rule. 

THE  RULE  OF  PUFFENDORF. 

Puffendorf  asserts  “ that  in  becoming  a member  of 
society,  a man  does  not  renounce  entirely  the  care  of 
himself  and  his  affairs ; on  the  contrary,  he  seeks 
thereby  an  efficient  protection  under  which  he  may 
live  and  labor  in  security  and  procure  for  himself  the 
necessities  and  conveniences  of  life.”  He  adds  further : 

When  there  is  no  law  on  the  subject  it  is  necessary 
to  judge  by  custom  of  the  liberty  which  each  one  has 
in  this  respect.  If  nothing  is  established  by  custom  and 
there  is  otherwise  no  mention  made  of  the  matter  in  the 
agreement  by  which  a man  has  become  a member  of 
the  society,  there  is  no  reason  to  presume  that  each 
free  person,  in  entering  into  society,  has  not  tacitly  re- 


IN  THE  UNITED  STATES. 


15 


served  to  himself,  the  permission  to  leave  it  when  he 
wishes,  and  that  he  has  pretended  to  oblige  himself  to 
reside  all  his  life  in  a certain  country  and  not  rather 
to  regard  himself  always  as  a citizen  of  the  world.” 
He  adds  further,  That  members  of  a society  ought  to 
be  permitted  to  retire  to  any  other  place,  in  which 
they  hoped  to  better  their  alfairs.” 

Puffendorf  carries  out  the  principles  as  advanced  by 
Grotius.  He  attributes  to  man  the  exercise  of  reason 
and  in  the  exercise  of  that  reason,  which  is  universal 
and  co-extensive  with  man’s  being,  he  finds  the  source 
of  the  law. 


THE  RULE  OF  BYNKERSHOEK. 

A member  of  a state  has  the  right  to  remove  from  a 
society  and  thereby  renounce  his  allegiance  to  the  sov- 
ereign of  the  country  from  which  he  departed. 

THE  RULE  OF  BURLAMAQUI. 

A man  ceases  to  be  a subject  of  a state  when  he 
leaves  that  state  and  goes  to  settle  elsewhere.  It  is  a 
right  inherent  in  every  man,  that  every  man  should 
have  the  right  of  removing  out  of  the  society  if  he 
thinks  proper. 

THE  RULE  OF  FOELIX. 

A man  has  a right  to  change  his  nationality. 

The  right  in  itself  is  not  questioned.  It  is  the  ex- 
ercise of  the  right  subject  to  such  rules  of  departure 
and  acquisition  of  a new  citizenship  as  may  be  pre- 
scribed in  different  countries. 


16 


THE  LAW  OF  CITIZENSHIP 


THE  RULE  OF  RUTHERFORTH. 

The  only  restraint  which  a man’s  right  is  originally 
under,  is  the  obligation  of  governing  himself  by  the 
laws  of  nature.  Whatever  rights  those  of  our  own 
species  may  have  over  us,  is  either  to  direct  our  actions 
to  certain  purposes  or  to  restrain  them  within  certain 
bounds.  Beyond  what  the  law  of  nature  has  pre- 
scribed, arise  rights  from  some  after  acts  of  our  own  ; 
from  some  consent,  either  express  or  tacit,  by  which  we 
have  alienated  our  actions  from  ourselves  to  them. 

THE  RULE  OF  VATTEL. 

If  society  has  not  contracted  with  the  citizen  for  a 
determined  length  of  time,  he  may  retire,  if  he  may 
do  so  without  prejudice  to  the  society.  Every  man 
on  coming  of  age  may  determine  for  himself,  if  his 
interest  is  to  remain  as  a member  of  the  society  in 
which  he  was  born ; if  he  thinks  not,  he  may  quit  it. 

There  is  no  obligation  from  the  social  compact 
upon  man,  to  continue  in  allegiance  to  the  government 
under  which  he  was  born. 

THE  RULE  OF  HEFFTER. 

The  world  is  the  common  fatherland  of  all  human 
beings.  The  right  of  emigration  is  inalienable.  Only 
self-imposed  or  unfulfilled  obligations  can  restrict  it. 
This  restriction  is  not  a denial  of  the  right  in  itself ; 
it  enjoins  the  fulfillment  of  all  obligations  to  the 
society  of  which  one  is  a member  before  he  can  acquire 
citizenship  in  another  state  and  obtain  recognition  in 
the  state  from  which  he  departed. 


IN  THE  UNITED  STATES. 


17 


THE  RULE  OF  BLUNTSCHLI. 

Man’s  being  extends  beyond  his  state.  A man  is 
no  more  bound  to  the  land  of  his  birth  than  he  is  tied  \ 
to  the  soil. 


THE  RULE  OF  FRIST. 

It  is  in  fact,  a principle  inherent  in  human  liberty, 
a principle  of  natural  right  that  a person  may  leave 
the  soil  on  v^hich  by  chance  his  birth  may  have  thrown 
him. 


THE  RULE  OF  DE  MARTENS. 

It  belongs  to  universal  or  public  law  to  determine 
how  far  the  state  is  authorized  to  restrict  or  prevent 
the  emigration  of  the  natives  of  a country.  Although 
the  bond  which  attaches  a subject  to  a state  be  not 
indissoluble,  every  state  has  a right  to  be  informed 
beforehand  of  the  design  of  one  of  its  subjects  to 
expatriate  himself  and  to  examine  whether  by  reason 
of  crime,  debt,  or  of  his  engagements  not  being  yet 
fulfilled  toward  the  state,  it  is  authorized  to  retain 
him  longer.  These  cases  excepted,  it  is  no  more 
justified  in  prohibiting  him  from  emigrating,  than 
it  would  be  in  prohibiting  foreign  sojourners  from 
doing  the  same. 

CITIZENSHIP  IN  THE  UNITED  STATES. 

In  no  country  more  than  in  the  United  States  has 
this  vital  question  been  agitated,  and  its  importance  to 
the  United  States  is  very  great  when  we  consider  for  a 
moment  that  the  United  States  is  now,  and  has  been, 
ever  since  its  existence  as  an  independent  society,  the 
3 


18 


THE  LAW  OF  CITIZENSHIP 


harbor  and  refuge  for  the  members  of  all  communities 
in  the  civilized  world. 

The  growth  of  the  United  States  has  not  been, 
as  was  that  of  Kome,  by  conquest  of  neighboring 
states,  to  dictate  to  them,  such  laws,  as  by  virtue 
of  superior  force  it  was  able  to  do,  and  thus,  by  its 
influence  and  power  proceed  to  the  subjugation  of 
the  then  known  world.  The  contrary  has  been  the 
rule  in  the  United  States.  There  was  the  country, 
full  of  resources,  which  its  citizens,  in  the  inception, 
were  neither  sufiiciently  numerous,  nor  had  they  the 
ability,  to  develop  and  to  accomplish  its  growth; 
it  opened  its  arms  to  the  members  of  all  communities 
in  the  civilized  world,  to  come  to  its  shores  and 
to  enjoy  life,  liberty  and  the  pursuit  of  happiness 
with  them.  This  brought  to  the  country  men  of  laws, 
manners  and  customs,  which  were  neither  compatible 
with  those  of  the  country  which  sought  their  coming, 
nor  were  they  compatible  with  each  other.  They 
differed  from  each  other  in  race,  in  language,  in 
religion,  in  customs  and  in  the  rules  of  positive  law 
which  had  been  enacted  in  the  community  from  which 
they  came,  for  their  guidance  in  that  country.  They 
came  to  a country,  which  had  already  announced  to 
the  civilized  world,  its  principles  and  forms  of  govern- 
ment. For  almost  a century  this  has  gone  on,  and 
to-day  the  United  States  contains  within  its  limits, 
members  and  descendants  of  members,  from  every 
civilized  community  in  the  world. 

For  this  reason,  in  treating  this  subject,  reference  will 
be  made  particularly  to  the  United  States,  and  explana- 
tions made  as  to  who  are  considered  to  be  citizens  and 


IN  THE  UNITED  STATES. 


19 


who  are  not.  Comparisons  will  be  drawn  between  the 
principles  which  govern  citizenship  in  the  United 
States,  and  the  principles  which  govern  in  other  com- 
munities, such  as  relate  to  the  means  by  which  one 
becomes  a member,  and  his  right  of  departure  after  he 
has  been  admitted  to  full  membership.  Necessarily,  a 
conflict  of  these  principles  may  be  expected,  and 
the  nature  of  the  conflict  will  be  shown  and  the 
reasons  therefor,  at  different  epochs  since  the  declara- 
tion of  independence  of  the  United  States ; for  it  is 
since  that  date,  that  the  questions  involved  in  the 
rights  and  privileges  of  citizenship  have  arisen.  It  is 
since  that  date,  and  particularly  so,  during  the  past 
quarter  of  a century,  that  commercial  relations  have 
necessitated  the  departure  of  citizens  of  one  country 
to  reside  permanently  or  temporarily  in  other  coun- 
tries, not  alone  for  the  good  of  the  country  from 
which  they  departed,  but,  also,  for  the  benefit  of  the 
country  to  which  they  migrated,  and  last  but  not  least, 
for  such  advantage  and  happiness  as  man  might  seek 
and  find  for  himself  and  family. 

At  the  present  time  we  find  citizens  of  almost  every 
country  living  in  foreign  countries  and  there  enjoying 
such  rights  and  privileges  as  the  positive  laws  of  the 
country  in  which  they  find  themselves  accord  to  them 
— and,  furthermore,  we  find  a constant  change  of 
citizenship  going  on,  by  which  the  citizen  of  one 
country  becomes  a member  of  another.  The  import- 
ance of  the  question  cannot  be  doubted,  and  it  is  with 
attention  to  citizenship  in  the  United  States,  that  this 
inquiry  is  directed. 


20 


THE  LAW  OF  CITIZENSHIP 


IN  THE  BEGINNING  WAS  MAN. 

Man  was  a dependent  being;  be  was  dependent  on 
his  fellow  man ; alone,  by  himself  he  could  not  exist^ 
he  sought  protection  from  his  fellow  men  in  time 
want  and  in  time  of  prosperity ; he  looked  to  his 
neighbor  in  time  of  trouble ; he  looked  to  him  for  as- 
sistance. The  one  is  the  guardian  of  the  other’s  per- 
sonal rights  and  rights  of  property.  The  one  seeks  the 
other  for  counsel  in  peace,  and  defense  in  danger ; his 
dependency  reaches  his  depravity  ; his  wants  oblige  so- 
ciety with  his  fellow  man ; the  relation  is  mutual 

Man  is  one  of  the  many  creatures  of  the  Almighty, 
different  from  other  creatures  in  the  properties  which 
he  possesses  and  which  nature  has  given  him.  With 
these  qualities  from  his  Maker  he  pursues  life,  liberty 
and  happiness.  To  perfect  this  pursuit,  man  is  given 
the  powers  with  which  to  do,  not  alone  the  powers, 
but  therewith  are  further  connected  certain  rights 
which  are  a part  of  his  being,  which  we  term  his  nat 
ural  rights,  rights  which  are  original  or  innate.  By 
this  is  meant  his  nature,  and  his  exercise  of  those 
rights  is  the  action  of  his  being  or  nature.  It  is  the 
act  of  man. 

In  this  connection  the  term  right  ” is  synonymous 
with  power.”  It  is  the  use  of  the  power  over  one’s  self 
which  is  meant,  and  not  over  the  acts  of  his  neighbor. 
It  is  the  control  of  one’s  own  self  and  the  exercise  of 
this  control,  which  is  the  right  nature  has  given  to 
man.  This  right  to  control  one’s  self  is  recognized  by 
others  of  the  same  species  for  the  reason  that  it  is 
equally  pursued  by  others,  and  the  equality  of  the 
power,  involving  the  right,  constitutes  the  equality  of 


IN  THE  UNITED  STATES. 


21 


man  in  a state  of  nature.  These  rights  exist  irrespect- 
ive of  government  and  involve  capacity  to  take  and 
^pquii'e  further  rights,  which  may  grow  out  of  the  re- 
■ * llaiions  into  which  man  enters  with  his  fellow  beings, 
^ when  he  organizes  or  joins  society. 


THE  SOCIETY  WHICH  MAN  ENTERS. 

The  society  which  man  enters  is  an  institution  of 
man.  It  is  an  organization  of  human  invention.  It  is 
constituted  of  human  beings  who  seek  life,  liberty  and 
happiness  by  the  individual  surrender  of  such  natural 
rights  as  are  requisite  and  essential  to  their  common 
welfare. 

The  society  is  a civilized ‘institution. 

The  society  is  composed  of  members ; a relation  of 
a governed  to  a governing  power  prevails  over  a tract 
of  land  common  to  mankind  within  which  the  govern- 
ment exercises  rights  of  authority. 

To  such  a society  the  term  most  applicable  is  state. 

The  state  or  society  is  ever  changing  and  changeable. 
Its  members  change  in  numbers  ; some  die  and  some 
are  born  during  every  day  of  its  existence.  It  changes 
in  form  : from  kingdom  to  empire  and  vice  versa  ; from 
kingdom  to  republic  and  vice  versa.  Each  and  every 
change,  whether  in  numbers  or  in  form,  is  the  act  of 
man. 

In  the  declaration  of  independence  of  the  thirteen 
United  States  of  America,  it  is  primarily  set  forth  in 
the  follo^ving  language: 

We  hold  these  truths  to  be  self-evident,  that  all 
men  are  created  equal ; that  they  are  endowed  by  their 
Creator  with  certain  inalienable  rights ; that  among 


22 


THE  LAW  OF  CITIZENSHIP 


these  are  life,  liberty  and  the  pursuit  of  happiness ; 
that  to  secure  these  rights,  governments  are  instituted 
among  men,  deriving  their  just  powers  from  the  con- 
sent of  the  governed.” 

In  article  I,  section  1,  declaration  of  rights,  state  of 
Alabama,  we  find  : That  all  men  are  created  equal ; 
that  they  are  endowed  by  their  Creator  with  certain  in- 
alienable rights  ; that  among  these  are  life,  liberty  and 
the  pursuit  of  happiness.” 

Section  3.  “That  all  power  is  inherent  in  the  peo- 
ple, and  all  free  governments  are  founded  on  their  au- 
thority and  instituted  for  their  benefit.” 

In  article  II,  section  1,  declaration  of  rights  of  the 
state  of  Arkansas,  we  read : “ That  all  freemen  when 
they  form  a social  compact,  are  equal,  and  have  certain 
inherent  and  indefeasible  rights,  among  which  are  those 
of  enjoying  and  defending  life  and  liberty;  of  acquir- 
ing, possessing  and  protecting  property  and  reputation, 
and  of  pursuing  their  own  happiness.” 

Section  2.  “ That  all  power  is  inherent  in  the  people 
and  all  free  governments  are  founded  on  their  author- 
ity and  instituted  for  their  peace,  safety  and  happi- 
ness.” 

In  article  I,  section  1,  declaration  of  rights  in  the 
state  of  California,  we  read : “ All  men  are  by  nature, 
free  and  independent  and  have  certain  inalienable 
rights,  among  which  are  those  of  enjoying  and  defend- 
ing life  and  liberty,  acquiring,  possessing  and  protect- 
ing property,  and  pursuing  and  obtaining  safety  and 
happiness.” 

Section  2.  “ All  political  power  is  inherent  to  the 
people.” 


IN  THE  UNITED  STATES. 


23 


In  article  II,  section  1,  bill  of  rigbts,  state  of  Colo- 
rado, we  find  : That  all  political  power  is  vested  in, 
derived  from  the  people ; that  all  government  of  right 
originates  from  the  people ; is  founded  upon  their  will 
only  and  is  instituted  solely  for  the  good  of  the 
whole.” 

Section  3.  That  all  persons  have  certain  natural, 
essential  and  inalienable  rights,  among  which  may  be 
reckoned  the  right  of  enjoying  and  defending  their 
lives  and  liberties ; that  of  acquiring,  possessing  and 
protecting  property;  and  of  seeking  and  obtaining 
their  safety  and  happiness.” 

In  article  I,  section  1,  declaration  of  rights,  state  of 
Connecticut,  we  find  : That  all  men,  when  they  form 
a social  compact,  are  equal  in  rights.” 

Section  2.  That  all  political  power  is  inherent  in 
the  people,  and  all  free  governments  are  founded  on 
their  authority  and  instituted  for  their  benefit.” 

In  article  I,  section  1,  declaration  of  rights,  state  of 
Florida,  we  find  : That  all  free  men  when  they  form 
a social  compact  are  equal,  and  have  certain  inherent 
and  indefeasible  rights,  among  which  are  those  of  en- 
joying and  defending  life  and  liberty ; of  acquiring, 
possessing  and  protecting  property  and  reputation, 
and  of  pursuing  their  own  happiness.” 

Section  2.  ^^That  all  political  power  is  inherent  in 
the  people,  and  all  free  governments  are  founded  on 
their  authority  and  established  for  their  benefit.” 

In  article  VIII,  section  1,  constitution  of  the  state 
of  Illinois,  we  find  : That  all  men  are  born  equally 
free,  and  independent  and  have  certain  inherent  and 
indefeasible  rights,  among  which  are  those  of  enjoying 


24 


THE  LAW  OF  CITIZENSHIP 


and  defending  life  and  liberty,  and  of  acquiring,  pos- 
sessing and  protecting  property  and  reputation  and  of 
pursuing  their  own  happiness.” 

Section  2.  “That  all  power  is  inherent  in  the  people 
and  all  free  governments  are  founded  on  their  author- 
ity, and  instituted  for  their  peace,  safety  and  happiness.” 

In  article  I,  section  1,  constitution  of  state  of  Indiana, 
we  find:  “That  all  men  are  born  equally  free  and 
independent  and  have  certain  natural,  inherent  and 
inalienable  rights,  among  which  are  the  enjoying  and 
defending  life  and  liberty  ; and  of  acquiring,  possessing 
and  protecting  property ; and  pursuing  and  obtaining 
happiness  and  safety.” 

Section  2.  “That  all  power  is  inherent  in  the 
people,  and  all  free  governments  are  founded  on  their 
authority,  and  instituted  for  their  peace,  safety  and 
happiness.” 

In  article  I,  section  1,  bill  of  rights,  state  of  Iowa, 
we  find : “All  men  are  by  nature,  free  and  equal,  and 
have  certain  inalienable  rights,  among  which  are  those 
of  enjoying  and  defending  life  and  liberty ; acquiring, 
possessing  and  protecting  life  and  property,  and  of 
pursuing  and  obtaining  safety  and  happiness.” 

Section  2 “All  political  power  is  inherent  in  the 
people.” 

In  article  I,  section  1,  bill  of  rights,  state  of  Kansas, 
we  find : “All  men  are  by  nature,  free  and  independ- 
ent, and  have  certain  inalienable  rights,  among 
which  are  those  of  enjoying  and  defending  life  and 
liberty ; acquiring,  possessing  and  protecting  life  and 
property,  and  seeking  and  obtaining  safety  and 
happiness.” 


IN  THE  UNITED  STATES. 


25 


Section  2.  ^‘All  political  power  is  inherent  in  the 
people.” 

In  article  XII,  constitution  of  state  of  Kentucky, 
we  find  : “ That  all  men  when  they  form  a social  com- 
pact are  equal ; that  all  power  is  inherent  in  the 
people.” 

In  title  I,  article  1,  bill  of  rights,  state  of  Louisiana, 
we  find : ^‘All  men  are  created  free  and  equal,  and 
have  certain  inalienable  rights,  among  these  are  life, 
liberty  and  the  pursuit  of  happiness ; to  secure  these 
rights,  governments  are  instituted  among  men,  deriv- 
ing their  just  powers  from  the  consent  of  the  governed.” 

In  article  I,  section  1,  declaration  of  rights,  state  of 
Maine,  we  find : ‘^All  men  are  born  equally  free  and 
independent,  have  certain  natural,  free  and  inalienable 
rights,  among  which  are  those  of  enjoying  and  de- 
fending life  and  liberty ; acquiring,  possessing  and 
protecting  property,  and  obtaining  safety  and  happi- 
ness.” 

Section  2.  “All  power  is  inherent  in  the  people ; all 
free  governments  are  founded  in  their  authority,  and 
instituted  for  their  benefit.” 

In  declaration  of  rights,  state  of  Maryland,  we  find : 
“That  all  government  of  right  originates  from  the 
people  ; is  founded  in  compact  only ; and  instituted 
solely  for  the  good  of  the  whole.” 

In  part  I,  article  1,  declaration  of  rights,  state  of 
Massachusetts,  we  find  : “All  men  are  born  free  and 
equal,  and  have  certain  natural,  essential  and  inalien- 
able rights,  among  which  may  be  reckoned  the  right 
of  enjoying  and  defending  their  lives  and  liberties; 
that  of  acquiring,  possessing  and  protecting  property  ; 

4 


26 


THE  LAW  OF  CITIZENSHIP 


in  fine,  that  of  seeking  and  obtaining  their  safety  and 
happiness.” 

In  aidicle  I,  section  1,  constitution  of  state  of  Mich- 
igan, we  find : ^‘All  political  power  is  inherent  in  the 
people.” 

Section  2.  Government  is  instituted  for  the  pro- 
tection, security,  and  benefit  of  the  people.” 

In  bill  of  rights,  state  of  Minnesota,  article  I,  section 
5,  we  find  : The  government  is  instituted  for  the 
security,  benefit  and  protection  of  the  people,  in 
whom  all  political  power  is  inherent.” 

In  declaration  of  rights,  state  of  Mississippi,  article 
I,  section  1,  we  find:  “That  all  freemen,  when  they 
form  a social  compact,  are  equal  in  rights.” 

Section  2.  “ That  all  political  power  is  inherent  in 
the  peoj)le,  and  all  free  governments  are  founded  on 
their  authority,  and  instituted  for  their  benefit.” 

In  the  declaration  of  rights,  state  of  Missouri,  we 
find : “ That  all  political  power  is  vested  in  and 
derived  from  the  people.” 

In  bill  of  rights,  state  of  Nebraska,  article  I,  section 
1 : “All  persons  are,  by  nature,  free  and  independent, 
and  have  certain  inherent  and  inalienable  rights ; 
among  these  are  life,  liberty  and  the  pursuit  of  happi- 
ness. To  secure  these  rights  and  the  protection  of 
property,  governments  are  instituted  among  people, 
deriving  their  just  powers  from  the  consent  of  the 
governed.” 

In  declaration  of  rights,  state  of  Nevada,  article  I, 
section  1 : “All  men  are  by  nature,  free  and  equal, 
and  have  certain  inalienable  rights,  among  which  are 
those  of  enjoying  and  defending  life  and  liberty; 


IN  THE  UNITED  STATES. 


27 


acquiring,  possessing  and  protecting  property,  and  of 
pursuing  and  obtaining  safety  and  happiness.” 

Section  2.  political  power  is  inherent  in  the 

people.” 

In  bill  of  rights,  state  of  New  Hampshire,  part  I, 
article  1 : ‘^All  men  are  born  equally  free  and  in- 
dependent; therefore,  all  government  of  right,  origi- 
nates from  the  people,  is  founded  on  consent,  and 
instituted  for  the  general  good.” 

Article  2.  ‘‘All  men  have  certain  natural,  essential 
and  inherent  rights,  among  which  are  the  enjoying 
and  defending  life  and  liberty ; acquiring,  possessing 
and  protecting  property,  and,  in  a word,  of  seeking 
and  obtaining  happiness.” 

Article  3.  “ When  men  enter  into  a state  of  society 
they  surrender  up  some  of  their  natural  rights  to  that 
society,  in  order  to  insure  the  protection  of  others 
and  without  such  an  equivalent,  the  surrender  is  void.” 

In  rights  and  privileges,  in  the  state  of  New  Jersey, 
article  I,  section  1:  “All  men  are  by  nature,  free  and 
independent,  and  have  certain  natural  and  inalienable 
rights,  among  which  are  those  of  enjoying  and  defend- 
ing life  and  liberty ; acquiring,  possessing  and  pro- 
tecting property,  and  of  pursuing  and  obtaining  safety 
and  happiness.” 

Section  2.  “All  political  power  is  inherent  in  the 
people.” 

In  declaration  of  rights,  state  of  North  Carolina : 
“ That  all  political  power  is  derived  from  and  vested 
in  the  people  only.” 

In  bill  of  rights,  state  of  Ohio,  article  I,  section  1 : 
“All  men,  are  by  nature,  free  and  independent,  and 


28 


THE  LAW  OF  CITIZENSHIP 


have  certain  inalienable  rights,  among  which  are 
those  of  enjoying  and  defending  life  and  liberty; 
acquiring,  possessing  and  protecting  property,  and 
seeking  and  obtaining  happiness  and  safety.” 

Section  2.  “All  political  power  is  inherent  in  the 
people.” 

Bill  of  rights,  state  of  Oregon,  article  I,  section  1: 
“We  declare  that  all  men,  when  they  form  a social 
compact,  are  equal  in  rights ; that  all  power  is  inher- 
ent in  the  people ; and  all  free  governments  are 
founded  on  their  authority,  and  instituted  for  their 
peace,  safety  and  happiness.” 

Declaration  of  rights,  state  of  Pennsylvania:  “That 
all  men  are  born  equally  free  and  independent, 
and  have  certain  natural  and  inalienable  rights, 
amongst  which  are  the  enjoying  and  defending  life 
and  liberty;  acquiring,  possessing  and  protecting 
property,  and  pursuing  and  obtaining  happiness  and 
safety.” 

In  declaration  of  rights,  state  of  South  Carolina, 
article  I,  section  1.  “All  men  are  born  free  and  equal, 
endowed  by  their  Creator  with  certain  inalienable 
rights,  among  which  are  the  rights  of  enjoying  and 
defending  their  rights  and  liberties ; of  acquiring, 
possessing  and  protecting  property,  and  of  seeking 
and  obtaining  their  safety  and  their  happiness.” 

In  declaration  of  rights,  state  of  Rhode  Island,  ar- 
ticle I,  section  1 : “ All  free  governments  are  instituted 
for  the  protection,  safety  and  happiness  of  the  people.” 

In  declaration  of  rights,  state  of  Tennessee,  article 
I,  section  1 : “ That  all  power  is  inherent  in  the 
people,  and  all  free  governments  are  founded  on  their 


IN  THE  UNITED  STATES. 


29 


authority  and  instituted  for  their  peace,  safety  and 
happiness.” 

In  declaration  of  rights,  state  of  Texas,  first:  All 
men  when  they  enter  a social  compact  have  equal  rights.” 
Second:  All  political  power  is  inherent  in  the  people.” 

In  bill  of  rights,  state  of  Vermont,  chapter  I, 
section  1 : “ That  all  men  are  born  equally  free  and 
independent,  and  have  certain  natural,  inherent  and  in- 
alienable rights,  among  which  are  the  enjoying  and 
defending  life  and  liberty;  acquiring,  possessing  and 
protecting  property,  and  pursuing  and  obtaining  safety 
and  happiness.” 

Bill  of  rights,  state  of  Virginia,  section  1 : That 
all  men  are  by  nature  equally  free  and  independent, 
and  have  certain  inherent  rights  of  which,  when  they 
enter  into  a state  of  society,  they  cannot,  by  any  com- 
pact, deprive  or  divest  their  posterity,  namely  : the 
enjoyment  of  life  and  liberty,  with  a means  of  acquir- 
ing and  possessing  property,  and  of  pursuing  and  ob- 
taining happiness  and  safety.” 

Section  2.  That  all  property  is  vested  in,  and  con- 
sequently derived  from  the  people.” 

In  the  constitution,  state  of  West  Virginia,  section  3 : 

The  powers  of  government  reside  in  all  the  citizens 
of  the  state  and  can  be  rightfully  exercised  only  in  ac- 
cordance with  their  will  and  appointment.” 

In  declaration  of  rights,  state  of  Wisconsin,  article 
I,  section  1 : All  men  are  born  equally  free  and  in- 
dependent, and  have  certain  inherent  rights.  Among 
these  are^life,  liberty  and  the  pursuit  of  happiness.” 

These  declarations  of  the  United  States,  and  of  the 
many  states  which  compose  the  union,  were  not  origi- 


30 


THE  LAW  OF  CITIZENSHIP 


nal.  Already  they  had  found  expression  in^the  writ* 
ings  of  public  jurists  on  the  natural  rights  of  man,  the 
origin  of  society  and  public  and  private  international 
law.  It  has* been  a disputed  question,  and  was,  when 
the  United  States  were  organized  as  an  independent 
community. 

Among  the  Orientals  we  find  the  theory:  ^^The 
state  rests  on  the  will  of  God ; the  state  is  the  work 
of  God.”  This  was  theocracy,  in  which  the  Jews  be- 
lieved : “That  positive  law  was  of  God  and  not  of 
man.”  In  India  and  Egypt  we  find  jurists,  human  be- 
ings with  divine  inspiration,  as  emanators  of  equity 
and  the  source  of  justice.  The  Druids  of  northern 
Europe  were  held  in  reverence,  as  the  receptacles  of 
law  from  God,  through  whom  it  came  to  the  people. 
The  Greeks  first  discussed  the  idea  and  expressed  the 
origin  of  positive  law  to  be  in  man. 

Aristotle  grounds  the  state  on  the  nature  of  man, 
on  man’s  safety  and  consequently  his  well  being.  A 
citizen  of  a Grecian  state  was  a particle  of  the  whole, 
which  whole  was  the  state,  and  partook  of  the  control 
of  its  affairs. 

Among  the  Homans,  the  state  was  respublica ; the 
jus  naturale  of  man  was  fully  recognized. 

In  the  middle  ages,  two  sources  came  into  conflict. 
The  Christian  church  did  not  hold  that  government 
was  vested  in  a worldly  prince.  Among  the  Germans 
a worldly  prince  was  the  source  of  all  laws  and  equity. 
This  was  the  feudal  theory  and  practice  which  in  vary- 
ing forms  and  modifications  remained  in  force  for  many 
years,  on  the  continent  of  Europe  and  was  trans- 
planted to  England. 


IN  THE  UNITED  STATES. 


31 


With  the  downfall  of  the  Koman  empire,  the  pan- 
dect of  the  civilized  world  lost  its  authority.  The  law 
jus  naturale  became  extinct.  On  the  ruins  of  the 
Roman  empire  rose  kingdoms  and  principalities  of  a 
barbarous  people.  Continental  Europe  was  governed 
by  the  laws  of  barbarians.  The  laws  of  these  people 
were  feudalistic.  The  relation  of  man  to  the  prince 
was  dual ; through  the  land,  for  reason  of  birth  on  the 
land  of  his  prince ; and  fealty  or  allegiance  to  his 
sovereign  to  perform  military  service. 

From  citizens  the  Romans  became  subjects.  Their 
lands  were  parcelled  among  the  followers  of  the  king, 
the  leaders  of  whom  became  counsellors  and  adminis- 
trators of  justice,  taking  to  themselves  titles  of  their 
towns  and  castles,  and  thus  creating  a landed  nobility, 
co-extensive  with  the  system  of  tenures.  To  give  the 
nobility  gentility  of  blood,  they  adopted  armorial 
bearings,  and  the  names  of  their  estates  for  surnames. 
The  privileges  of  birth  thus  became  susceptible  of 
proof  under  the  customs  of  their  lands.  These  inno- 
vations marked  more  distinctly  the  relation  of  high 
born  to  plebeian  who  could  hold  no  fief. 

The  allodialists  subscribed  to  the  oath  demanded 
by  the  feudal  lords.  The  vassals  became  identified 
with  the  soil.  In  many  states  he  was  inseparable 
from  his  till ; he  was  a “ hoeriger  ” to  the  land ; a 
quasi  immovable.  To  what  extent  this  power  of  the 
prince  over  his  subjects  was  exercised,  is  apparent 
from  recent  dates,  not  a century  ago,  when  the  Hes- 
sian prince  sold  his  subjects  to  the  English  king  to 
contend  against  the  struggle  for  independence  of 
his  colonies  in  America. 


32 


THE  LAW  OF  CITIZENSHIP 


It  remained  for  the  French  revolution  to  declare  to 
Europe  the  liberty  and  equality  of  man. 

From  the  agitation,  which  prevailed  at  about  this 
date  in  both  Europe  and  America,  was  evolved  anew 
the  principle,  that  all  men  were  created  equal  and  in 
them,  of  them  and  by  them,  society  and  government 
was  organized  for  the  protection  of  life,  liberty  and 
the  pursuit  of  happiness. 

The  effect  of  these  declarations,  to  the  world,  in 
America,  by  the  declaration  of  independence,  and  in 
Europe,  by  the  promulgation  of  the  code  Napoleon, 
in  their  respective  relations  to  citizenship,  will  be 
apparent.  From  this  date  the  theory  of  the  feudalists 
lost  support,  and  at  the  present  time  is  discount- 
enanced in  the  practice  of  nations. 

THE  SOCIETY  WHICH  MAN  ENTERS  MUST  BE  INDEPENDENT 
AND  RECOGNIZED  BY  OTHER  EXISTING  SOCIETIES. 

The  society  must  enjoy  its  own  autonomy,  free  from 
the  influence  of  other  states. 

The  essentials  which  make  up  a society  must  be 
evident  before  such  recognition  can  be  granted. 
There  must  be  members  or  citizens,  territory,  govern- 
ment and  laws. 

The  recognition  of  the  existience  of  another  state  is 
not  primarily  obligatory ; it  is  for  the  existing  state 
alone  for  itself  to  decide  when  it  will  recognize  a 
newly  created  state.  The  recognition  cannot  be 
denied,  when  the  independence  is  complete.  France 
recognized  the  independence  of  the  United  States 
earlier  than  did  England.  England  recognized  the 
independence  of  states  of  South  America  earlier  than 


IN  THE  UNITED  STATES. 


33 


did  Spain.  The  European  powers  recognized  the 
kingdom  of  Italy  earlier  than  did  Austria. 

So  long  as  strife  exists,  by  which  a people  seek  to 
attain  independence,  and  thus  create  a new  state,  no 
state  is  bound  to  recognize  the  would-be  state  strug- 
gling for  existence. 

The  struggles  in  Poland  in  1830-1832  ; the  struggles 
in  Hungary  in  1848-1849  ; the  struggles  in  the  con- 
federate states  of  North  America  in  1861-1865.  The 
recognition  may  be  considered  as  premature. 

England  withdrew  her  ambassador  from  France  in 
1778  for  reason  of  her  early  recognition  of  the  inde- 
pendence of  the  United  States  of  America.  In  1825, 
before  hostilities  were  concluded,  England  recognized 
the  South  American  states  as  against  Spain.  In  1827, 
England,  France  and  Russia  stipulated  to  recognize 
the  independence  of  Greece. 

In  1830  the  five  powers  of  Europe  recognized  the 
independence  of  Belgium  despite  the  protest  of  the 
king  of  Holland. 

In  1860  England  recognized  the  Italian  kingdom 
even  in  the  Neapolitan  province  while  Franz  II  of 
Naples  was  struggling  to  maintain  himself  in  Gaeta 
and  notwithstanding  the  protests  of  the  Pope  of 
Rome. 

The  newly  created  state  has  the  right  to  demand  re- 
cognition from  the  family  of  nations  when  its  existence 
is  established. 

The  ancient  rule  that  such  recognition  rested  on 
simple  inclination  of  an  existing  state  to  do  so  or  not, 
does  not  find  support  in  the  recent  practice. 

Had  France  failed  to  recognize  the  newly  created 
5 


34: 


THE  LAW  OF  CITIZENSHIP 


North  German  Union  after  1866,  it  would  have  been 
cause  for  hostilities  on  the  part  of  Prussia. 

The  recognition  may  be  too  premature,  as  was  the 
case  in  1869  when  the  house  of  representatives  in 
Washington  recognized  the  independence  of  Cuba, 
while  hostilities  were  pending,  which  act  was  not 
countenanced  by  the  senate  and  president. 

FORMS  OF  SOCIETY. 

Man  in  his  compact  with,  his  fellow  man,  by  which 
society  is  formed,  institutes  the  form  of  government, 
by  which  and  under  which  he  will  best  enjoy  life,  lib- 
erty and  the  pursuit  of  happiness.  Whatever  the 
form  of  government  may  be,  under  which  he  and  his 
fellow  men  join  in  compact  to  live,  the  presumption 
is,  that  the  government  is  the  institution  of  man. 

The  compact  is  peculiar  to  the  people  by  whom  it  is 
made.  It  is  not  for  interference  on  the  part  of 
other  states  to  dictate  what  the  compact  shall  be  or 
the  form  of  government  under  which  they  shall  live. 
The  misguided  attempt  of  Napoleon  III  to  establish 
an  empire  in  Mexico  is  illustrative,  undertaken  as  it 
was  contrary  to  the  rule  that  right  and  politics  do  di- 
rect that  it  is  for  every  people  for  itself  to  determine 
the  constitutional  form  of  its  international  existence. 
Secretary  Seward  declared  the  growth  of  America  to 
be  republican  but  recognized  at  the  same  time  that 
the  United  States  had  neither  the  right  nor  the  incli- 
nation to  interfere  in  the  Mexican  constitutional  ques- 
tion as  to  whether  it  should  be  republican  or  monarch- 
ical. He  advocated  the  republican  form  of  government 
for  the  Americans  and  denied  the  right  to  European 
monarchies  to  interfere  in  the  question. 


IN  THE  UNITED  STATES. 


35 


Tliis  modern  principle  was  announced  by  King  Wil- 
liam at  the  opening  of  the  German  parliament  in  bis 
speech  from  the  throne  in  1870  as  follows:  “Among 
the  governments  as  among  the  nations  of  the  world 
the  conviction  is  firmly  established  that  to  every  indi- 
vidual political  community  the  independent  care  of  its 
prosperity,  liberty  and  happiness  is  alone  entrusted 
and  is  free  from  foreign  intervention.” 

The  compact  may  be  expressed  or  implied;  in 
either  case,  he  acquiesces  in  its  form,  and  is  bound 
to  perform  the  duties  and  obligations  which  arise  from 
the  laws  enacted  for  the  good  and  welfare  of  the 
members  of  the  society. 

This  is  purely  a state,  and  not  an  international 
question.  It  does  not  concern  other  states.  So  far 
as  recognition  as  member  of  the  family  of  nations  is 
concerned,  it  matters  not  whether  a state  is  monarchical 
or  republican  in  form. 

The  recognition  still  remains  notwithstanding 
changes  in  its  form  of  government. 

England  had  the  same  international  recognition 
before,  during  and  after  the  revolutions  from  1649  to 
1688. 

France  has  had  the  same  recognition  notwithstand- 
ing the  extreme  changes  in  form  of  government 
through  which  she  has  passed  since  1789. 

First,  there  must  be  a separation  of  the  people  as  a 
whole  into  independent  individuals ; but  a number  of 
such  independent  individuals  do  not  make  a whole 
unless  united. 

Second,  there  must  be  an  equality  as  between  these 
independent  individuals,  that  is,  the  one  must  be 


36 


THE  LAW  OF  CITIZENSHIP 


recognized  by  the  others  and  vice  versa  as  the  equal 
of  the  others ; the  particles  must  be  the  equal,  the  one 
of  the  other. 

Third,  there  must  be  an  unanimity  between  these 
independent  individuals  for  the  reason  that  the  agree- 
ment necessitates  that  there  should  be  as  among  the 
contracting  parties  in  order  that  the  agreement  be  valid. 

The  idea  has  been  advanced  that  a majority  should 
not  contract  as  among  themselves  to  bind  a minority 
which  was  unwilling  to  subscribe  to  such  an  agree- 
ment. The  act  of  the  majority  does  not  in  itself  bind 
the  minority  in  this  sense.  The  agreement  is  one 
made  by  the  representatives  of  all  who  desire  to  be 
members,  and  where  the  expression  of  a majority 
is  determined,  it  remains  for  the  minority  to  acquiesce. 
The  minority  cannot  separate  from  the  majority  act- 
ing in  unison.  Individually  the  right  exists  to  depart 
from  the  country  and  seek  citizenship  elsewhere. 

Treaties  between  the  states  continue  to  exist 
throughout  the  changes  in  the  form  of  government, 
with  the  exception  of  personal  treaties  as  between 
sovereigns  when  the  sovereign  loses  his  throne  — 
then  the  obligation  ceases. 

For  example : in  the  instance  of  King  Louis  XIV 
of  Finance  and  James  II  of  England.  The  emperor  of 
Austria  with  the  Bourbon  princes  of  Naples ; the 
Emperor  Napoleon  III  with  Maximilian. 

Treaties  ratified  at  any  period  by  the  existing  and 
recognized  government  with  other  states  are  binding 
on  the  subsequent  rulers,  who,  by  change  may  govern 
again  after  having  been  driven  from  power,  or  who 
may  be  called  to  govern  for  the  first  time. 


IN  THE  UNITED  STATES. 


37 


The  restored  Stuarts  in  England  could  not  nullify 
treaties  made  by  the  protector,  Cromwell.  Nor  could 
the  French  Bourbons  disown  the  treaties  made  by 
Napoleon  during  his  regime. 

The  conduct  of  the  restored  king  of  Piedmont  and 
elector  of  Hesse  in  1814,  in  treating  the  interim  of 
their  absence  from  power  as  a nullity  was  regarded  as 
pure  aristocratic  caprice  and  folly. 

It  is  essential  that  the  state  exists  and  enjoy  recog- 
nition as  an  international  being. 

The  interregcnum  in  Venice  of  Dictator  Manin;  of 
Kossuth  in  Hungary ; of  the  republican  governments 
in  Kome,  and  in  Baden  in  1849,  were  not  recognized 
as  binding  m those  states. 

EQUALITY  OF  SOCIETIES. 

Every  society  is  the  equal,  the  one  of  the  other, 
regardless  of  the  form  of  government,  extent  of  terri- 
tory, or  number  of  members. 

“The  equality  of  all  states  is  as  much  a principle  of 
international  law  as  the  equality  of  all  men  is  an 
axiom  of  our  independence ; therefore,  one  should  not 
do  to  a small  and  weak  state,  that  which  one  would 
not  do  to  a large  and  powerful  state,  or  what  we 
would  not  sufter  if  done  to  ourselves.” 

The  republic  of  Switzerland  is  the  equal  of  the 
empire  of  Russia  in  the  enjoyment  of  an  international 
existence  and  independence,  as  is  the  republic  of  the 
United  States  of  America  with  the  kingdom  of 
Italy. 

While  the  rule  is  well  established  that  in  the  inter- 
national practice  one  state  is  the  equal  of  the  other, 


38 


THE  LAW  OF  CITIZENSHIP 


yet  considerable  question  has  attached  to  the  dignity 
of  the  person  of  the  sovereign  in  monarchical  states. 

When  the  Duke  Frederick  I of  Brandenburg 
assumed  the  title  of  king  in  1701,  grave  doubts  were 
entertained  as  to  the  justice  of  his  act  to  the  then 
ruling  emperors  and  kings  in  Europe.  When  Peter 
the  Great  of  E-ussia  assumed  the  title  of  emperor,  in 
1701,  other  sovereigns  were  disinclined  to  recognize 
him,  and  it  was  not  done  by  the  German  emperor 
until  1744,  by  the  king  of  France  in  1762,  and  the 
king  of  Poland  in  1764.  In  this  century  the  title  of 
emperor  has  been  assumed  by  the  Austrian  king  for 
Austria ; by  Napoleon  for  France ; by  King  William 
of  Prussia  for  Germany ; and  the  title  of  empress  of 
India  by  Queen  Victoria. 

In  1818,  when  the  five  great  powers  conferred  at 
Aix-la-Chapelle,  the  wish  of  the  duke  of  Hesse  that 
he  be  recognized  as  a titular  king  was  not  countenanced. 

The  assumption  by  the  negro  head  of  Hayti  of  the 
title  of  emperor  in  recent  times  did  not  receive  recog- 
nition from  the  sovereigns  of  Europe. 

These  matters  of  title  govern  the  rules  of  precedence 
among  ruling  potentates.  In  certain  practices  they 
govern  as  to  a classification  of  the  respective  countries. 
It  must  not,  however,  be  considered  that  the  title  in 
itself  conditions  the  rank.  The  republic  of  the  United 
States  through  its  president,  as  also  Great  Britain 
through  its  queen,  must  rank  with  the  empires  of  the 
continent. 

England  did  not  lose  rank  under  the  rule  of  Crom- 
well ; the  same  rank  was  maintained  as  under  Charles  I. 

In  1797  the  French  republic  demanded  and  received 


IN  THE  UNITED  STATES. 


39 


the  same  recognition  as  the  Bourbon  kings  had  re- 
ceived. 


TREATIES. 

Every  society  has  a treaty  making  power,  through 
which  such  relations  with  other  societies  are  estab- 
lished, as  will  be  to  the  mutual  advantage  and  benefit 
of  the  contracting  parties.  A treaty  is  the  supreme 
law  of  a society. 

Treaties  are  made  to  continue  for  a period  of  time, 
and  involve  the  integrity  of  the  societies  contracting, 
in  their  entirety ; they  are  the  most  solemn  relations 
into  which  societies  can  enter.  As  such  they  estab- 
lish principles  of  law  which  are  to  govern  the  relations 
of  the  citizens  of  the  contracting  states. 

^‘An  obligee,  under  a treaty  can  be  held  to  fulfill  a 
disadvantageous  and  detrimental  obligation,  but  under 
no  circumstances  can  it  be  attributed  that  the  obligee, 
by  the  treaty,  purposes  to  sacrifice  its  existence  and 
prosperity.” 

In  the  year  1806,  the  Prussian  government  issued  a 
manifesto  in  which  it  concluded,  that  the  rights  of  a 
nation  as  a nation  take  precedence  of  all  treaties.” 

The  reason  for  this  is  found  in  the  well  recognized 
principle  that  it  is  open  to  every  state,  to  insure  to 
itself  its  own  independence  and  existence  in  order  to 
advance  the  welfare  and  well-being  of  its  citizens.  At 
that  time  treaties  were  imposed  on  a weaker  state  by  a 
more  powerful  neighbor,  and  at  that  time  the  weaker 
neighbors  of  Prussia  were  suffering  from  the  impo- 
sition of  Napoleon  as  well  as  Prussia  herself;  and  the 
manifesto  was  issued  more  as  against  France,  in  order  to 


40 


THE  LAW  OF  CITIZENSHIP 


bring  about  an  unification  of  policy  among  the  North 
German  states,  and  thereby  abrogate  the  treaties 
which  Napoleon  had  forced  upon  them. 

A manifesto  of  this  same  tenor  in  more  modern 
times,  when  Prussia  was  in  pursuit  of  acquisition  of 
more  power  by  subjugation  and  annexation,  as  of 
Schleswig-Holstein,  and  later  the  kingdom  of  Hanover, 
the  duchy  of  Hesse-Cassel  and  the  free  city  of  Frank- 
fort would  not  have  availed  in  any  instance  had  it 
been  made  by  any  of  these  states. 

This  principle  as  enunciated  by  Prussia  has  main- 
tained its  position  in  the  practice. 

In  1870  Lord  Granville  laid  down  the  principle  to 
be  simply  this : that  by  a treaty  one  nation  bound  an- 
other and  thereby  surrendered  a portion  of  its  indi- 
vidual liberty  to  act  and  to  do ; but  it  still  remained 
in  the  power  of  the  contracting  parties  to  bring  within 
its  own  peculiar  control  the  stipulating  of  the  treaty 
and  thus  remain  no  longer  bounden  by  it  than  it  should 
see  fit. 

This  rule  would  seem  to  imply  that  with  proper  no- 
tice a treaty  can  be  abrogated,  in  cases  when  it  was 
not  made  to  continue  for  a determined  period  of  time. 

SOCIETY  WITHOUT  MEN. 

The  world  is  the  common  fatherland  of  all  beings. 
Among  them,  by  them,  and  of  them  society  is  formed, 
to  protect  them  in  life,  liberty  and  the  pursuit  of  hap- 
piness. Society  without  members  would  be  a nullity ; 
no  people,  no  society. 

An  instance  of  the  total  annihilation  of  a society  not 
alone  as  a society  depriving  it  of  its  members  but  also 


IN  THE  UNITED  STATES. 


41 


of  its  territory  and  disregarding  its  form  of  government, 
was  tlie  partition  of  the  kingdom  of  Poland  between 
the  empires  of  Pussia,  Austria  and  the  kingdom  of 
Prussia. 


MAN  ENTERS  SOCIETY. 

The  dependence  of  man  teaches  him  his  wants.  This 
is  a feeling  common  to  mankind.  He  seeks  relief 
for  the  feeling  of  dependency,  and  assumes  such  re- 
lations in  society  as  will  best  serve  the  promotion  of 
his  own  welfare.  To  do  this  he  enters  society.  He 
does  not  renounce  to  the  other  members  of  the  society 
which  he  enters  the  entire  and  complete  control  of  his 
nature;  he  permits  certain  restrictions  such  as  are 
necessary  for  the  common  good. 

Of  these  restrictions  the  citizens  of  the  society  of 
which  he  seeks  membership  are  the  judges  and  he  as- 
sumes such  as  exist  at  the  time  he  enters  the  society 
as  a member  and  remains  subject  to  them  so  long  as 
they  exist  and  become  subject  to  others  which  the 
citizens,  of  which  he  is  one,  deem  necessary  should  ex- 
ist for  the  welfare  of  the  society. 

MAN  ENTERS  SOCIETY  BY  POSITIVE  LAW. 

The  men  who  form  society  become  members  thereof 
by  compact  or  agreement  with  each  other.  This  com- 
pact is  the  foundation  on  which  society  rests.  The 
compact  is  a positive  agreement,  and  rules  of  conduct 
enacted  by  the  governing  power  for  the  guidance  of 
the  members  of  the  society  are  positive  laws.  When 
a society  is  once  formed,  one,  not  a member  of  the  so- 
ciety, becomes  a member,  or,  if  a member,  absolves  his 
membership  by  positive  law,  based  on  the  law  of  na- 
6 


42 


THE  LAW  OF  CITIZENSHIP 


ture.  In  case  of  positive  law,  it  is  expressed ; in  case 
of  custom,  it  is  implied. 

WHAT  MAN  SURRENDERS  TO  SOCIETY. 

Man,  in  his  natural  state,  has  certain  innate  rights, 
which  rights  are  absolutely  in  him,  and  of  which  he 
cannot  entirely  and  completely  divest  himself,  or  be 
divested,  by  positive  law. 

Possessed  of  these  absolute  rights,  he  has  further 
the  power  to  assume  relative  rights,  such  rights  as  grow 
out  of  membership  of  the  society  through  the  rela- 
tions into  which  he  enters,  with  his  fellow  members. 

The  absolute  right  of  man  is  the  power  of  acting  as 
he  sees  fit,  when  in  a natural  state  and  when  in  society? 
he  restricts  this  absolute  right  in  conformity  to  the 
same  restriction  which  others  who  enter  into  the  com- 
pact on  which  society  is  based,  permit  to  be  imposed 
on  them.  Man  permits  these  restrictions  on  his  natural 
and  inherent  rights,  in  order  to  obtain  better  protec- 
tion to  life  and  liberty,  in  the  pursuit  of  happiness.  In 
return  for  this  protection  which  is  accorded  him,  he 
assumes  duties  correlative  to  the  rights  which  he  ac- 
quired. 

WHAT  MAN  RESERVES  TO  HIMSELF. 

Man  reserves  to  himself  the  right  to  withdraw  to 
his  natural  state,  in  which  man  was  before  he  joined 
society ; or  to  join  another  existing  society.  The  man- 
ner in  which  the  withdrawal  shall  be  made  is  entirely 
a matter  of  positive  law  of  the  society  from  which  he 
seeks  to  withdraw. 

The  withdrawal  legally  completed,  according  to  the 
positive  law  of  the  state  from  which  he  withdraws,  ab- 


IN  THE  UNITED  STATES. 


43 


solves  the  member  withdrawing  from  all  control  of 
the  governing  power  of  the  society  from  which  he  ab- 
solves himself  and  leaves  him  free  and  independent  to 
seek  membership  elsewhere.  Where  no  positive  law 
exists  prescribing  the  manner  of  withdrawal,  the  right 
still  exists  in  man  to  withdraw.  The  right  is  found 
implied  in  the  organization  of  the  society. 

In  the  exercise  of  the  right  of  withdrawal  he  does 
not  deprive  himself  of  the  right  to  protection  from  the 
society  from  which  he  withdrew  until  he  has  acquired 
membership  in  some  other  existing  society. 

The  right  to  withdraw  and  the  withdrawal  in  itself 
in  the  exercise  of  the  right  does  not  constitute  mem- 
bership in  another  state  until  the  party  withdrawing 
has  complied  with  the  laws  of  the  state  in  which  he 
seeks  membership  and  has  been  admitted  to  member- 
ship in  that  state. 


MAN’S  VOLITION. 

Man’s  act  in  joining  society  and  his  act  in  withdraw- 
ing therefrom,  must  be  peculiarly  his  own.  They  must 
be  acts  of  his  own  volition.  He  must  join  society  of 
his  own  free  will  and  must  withdraw  legally  of  his 
own  free  will. 

The  society  of  which  he  is  a member  cannot  force 
him  to  withdraw  and  become  an  exile  in  a foreign  so- 
ciety, no  more  for  a political  wrong,  than  it  can  for  a 
criminal  wrong,  or  for  reason  that  the  member  is  a 
pauper.  No  society  is  an  asylum  to  which  another 
society  can  send  its  members.  A society  can  receive 
whomsoever  it  pleases ; but  there  is  no  obligation  by 
which  it  can  be  compelled  to  receive  those  whom  it 


44 


THE  LAW  OF  CITIZENSHIP 


does  not  want.  Sucli  persons  can  be  returned  to  tbe 
society  by  which  they  were  sent  and  the  society  to 
which  they  are  returned  must  receive  them. 

The  exercise  of  volition  presupposes  that  the  person 
who  exercises  it  has  and  is  of  the  legal  age  so  to  do. 
This  age  is  not  the  same  in  all  countries;  it  is  an  age 
determined  by  the  positive  law  of  each  society  for  its 
own  good  and  benefit. 

THE  SOCIETY  MUST  HAVE  LAWS. 

The  society  of  the  state  which  man  joins  must  have 
laws.  These  laws  are  termed  positive  because  they 
are  enacted  for  the  special  society  in  which  they  are 
to  have  force.  They  are  the  outgrowth  of  man’s  na- 
ture to  meet  such  emergencies  and  promote  such  pros- 
perity, as  the  general  utility  of  the  society  demands. 
They  have  a particular  application  to  the  defined  ter- 
ritory of  the  society. 

The  term  positive  is  used  in  contra-distinction  to 
natural,  which  natural  law  man  restricts  by  the  posi- 
tive law,  to  meet  such  rules  of  conduct  as  will  best 
govern  the  members  of  society  in  their  relations  to  each 
other.  These  laws  of  the  society,  which  are  termed 
positive,  are  the  fabric  of  the  government,  which  is  an 
institution  of  man. 

The  natural  law  is  universal,  the  positive  law  is  ter- 
ritorial. 

THE  LAWS  ARE  ENACTED  FOR  THE  UTILITY  OF  THE 
SOCIETY. 

However  so  much  the  positive  law  of  oue  society 
may  differ  from  the  positive  law  of  anotlier,  the  rule 
is : that,  in  either  case,  the  laws  are  enacted  for  the 


IN  THE  UNITED  STATES. 


45 


common  good  of  the  members  of  the  society  within 
which  territory  the  laws  are  enacted.  It  is  not  open 
to  one  society  to  do  any  act  by  which  to  make  any  change 
in  any  existing  law  which  governs  in  another  society. 
Such  laws  are  purely  autonomous  and  do  not  concern 
other  societies.  This  is  the  general  rule  which  governs 
among  civilized  countries.  In  the  interests  of  human- 
ity argued  from  the  standpoint  of  religion  there  are 
many  instances  of  interference  on  the  part  of  civilized 
societies  in  the  affairs  of  barbarous  and  irreligious 
communities.  Nor  can  countries  debar  themselves 
from  intercourse  commercially  with  other  countries. 
This  position  was  taken  by  Great  Britain  and  the 
United  States  in  regard  to  China  and  Japan,  both  of 
which  countries  were  forced  to  open  their  ports  for 
trade  with  the  civilized  world  and  for  reason  of  the 
rule  which  follows:  ‘CAs  the  laws  of  each  particular 
state  are  designed  to  promote  its  advantage  the  con- 
sent of  all  or  at  least  the  greater  number  of  states  may 
have  produced  certain  laws  between  them.  And  in 
fact  it  appears  that  such  laws  have  been  established 
tending  to  promote  the  utility  not  of  any  j)articular 
state  but  of  the  great  body  of  the  communities.” 

RIGHT  AND  DUTY  IN  THE  SOCIETY. 

The  laws  of  every  society  prescribe  rights  and  du- 
ties which  the  members  must  perform,  to  preserve  the 
integrity  of  the  society.  Each  member  must  volun- 
tarily assume  the  obligations  prescribed  by  the  laws  of 
the  society,  when  he  seeks  membership,  in  return  for 
the  rights  which  he  enjoys.  The  presumption  must  be 
that  he  is  knowing  to  the  duties,  to  which  he  sub- 


46 


THE  LAW  OF  CITIZENSHIP 


scribes  wben  he  enters  the  society.  There  can  be  no 
hidden  obligations  or  duties  from  which  a member 
cannot  in  some  manner  be  absolved.  Immutable  ob- 
ligations, which  follow  man,  as  it  were  a part  of  his 
being,  cannot  be  enforced,  are  contrary  to  man’s  nature 
and  are  obnoxious  to  modern  civilization. 

EXERCISE  OF  RIGHTS  AND  PERFORMANCE  OF  DUTIES  DE- 
VOLVE EQUALLY  ON  ALL. 

Each  and  every  member  of  society  must  enjoy  equal 
rights,  equal  privileges,  and  the  duties  and  obligations 
must  be  equal,  in  order  to  insure  the  perfect  enjoy- 
ment of  life  and  liberty  and  the  pursuit  of  happiness. 

Unequal  rights  and  privileges  and  duties,  at  home, 
necessarily  involve  the  same  relations  abroad.  Equality 
before  the  law,  at  home,  insures  equality  of  protection 
to  one  member  of  society  as  to  another,  when  abroad. 

The  first  portion  of  this  rule  finds  reason  in  the  exist- 
ence of  certain  personal  treaties  as  between  ruling 
sovereigns,  which  regard  more  the  family  relations  as 
between  ruling  families  and  their  immediate  ranks  of 
nobility,  which  do  not  extend  to  their  subjects.  They 
concern  the  sovereign  family  as  a family  more  than 
the  state  as  a state  which  would  include  their  sub- 
jects. Such  treaties  are  often  known  as  alliances,  by 
which  a powerful  sovereign  agrees  to  protect  a weaker 
prince  and  maintain  him  on  his  throne.  The  relation 
thus  created  entitles  certain  classes  to  special  privileges 
in  the  respective  countries  which  enter  into  the  alliance. 
The  workino*  of  this  same  rule  was  more  evident  in 
European  countries  than  elsewhere.  In  those  countries 
in  which  there  was  a classification  of  the  people  ; in 
which  certain  civil  rights  were  accorded  to  one  class 


IN  THE  UNITED  STATES. 


47 


and  denied  to  anotlier ; while  the  rule  was  enforced 
with  stringency  at  home  it  did  not  lose  its  force  abroad ; 
the  citizen  was  supposed  to  move  in  the  same  class 
when  abroad  as  when  at  home.  This  was  also  the 
case  with  the  Jews  who  were  accorded  no  civil  rights 
until  quite  recent  dates.  When  abroad,  it  was  their 
own  race  to  which  they  looked  for  protection,  not  to 
the  country  from  which  they  came  and  of  which  they 
were  quasi-subjects.  It  was  much  the  same  through- 
out the  periods  of  religious  agitations. 

HOW  EXISTING  OBLIGATIONS  ARE  INQUIRED  INTO. 

It  is  optional  with  a member  of  society  to  exercise 
his  rights  and  privileges  ; it  is  obligatory  to  perform 
his  duties.  The  governing  power  redresses  an  infrac- 
tion of  the  former,  and  enforces  the  performance  of 
the  latter. 

These  duties  are  created  by  positive  law  and  are  de- 
termined by  the  positive  law  of  the  society  of  which 
one  is  a member ; and  the  local  tribunals  of  the  society 
can  alone  adjudicate  and  inquire  into  the  obligations 
and  duties  devolving  on  the  members.  When  a mem- 
ber has  performed  these  obligations,  the  local  authori- 
ties finally  determine. 

The  question  is  autonomous,  and  the  tribunals  of 
other  societies  have  no  jurisdiction  to  decide  and  give 
any  effect  to  their  decision,  within  the  confines  of  the 
society  where  the  question  of  duty  arises  on  the  rela- 
tion of  a citizen  to  his  government. 

THE  DIVISIONS  OF  GOVERNMENT  OF  A SOCIETY. 

The  government  of  a society  falls  into  three  depart- 
ments, and  to  each  department  are  assigned  powers. 


48 


THE  LAW  OF  CITIZENSHIP 


The  assignment  of  these  powers  is  found  in  the  com* 
pact  by  which  society  is  formed.  These  departments 
are  known  as  the  legislative,  the  executive  and  the  ju- 
diciary. 

In  the  legislative  department,  rules  of  conduct  and 
other  necessary  laws  for  the  government  of  the  mem- 
bers of  the  society  are  enacted. 

In  the  executive  department,  is  the  power  by  which 
the  laws  enacted  by  the  legislative  department  are  en- 
forced. 

In  the  judiciary  department,  are  interpreted  the 

laws  enacted  in  the  legislative  department. 

% 

WHAT  CONSTITUTES  FULL  MEMBERSHIP  OR  CITIZENSHIP 
IN  A SOCIETY. 

Full  citizenship  is  the  enjoyment  of  all  the  rights 
and  privileges  which  the  laws  of  a society  allow  to  its 
members  when  at  home,  and  equal  protection  when 
abroad.  It  consists  of : 

First.  In  the  privilege  accorded  to  members  of  par- 
ticipating in  the  legislative  branch  of  the  government, 
of  legislating  and  being  represented  in  the  legislative 
department. 

Second.  Subjection  to  the  executive  branch. 

Third.  The  right  to  have  rights  determined  and 
wrongs  redressed  in  the  judiciary  department. 

Fourth.  There  being  no  grades  or  degrees  of  citizen- 
ship, the  privilege  to  call  for  protection  from  his  gov- 
ernment when  abroad  equally  with  other  citizens  of 
the  state  of  which  he  is  a member. 

In  regard  to  the  protection  of  our  citizens  in  their 
rights  at  home  and  abroad,  we  have  no  law  which 


IN  THE  UNITED  STATES. 


49 


divides  them  into  classes  or  makes  any  difference 
whatever  between  them.”  9 Op.  Atty-Genl.  856. 

MAN  IS  EITHER  A CITIZEN  OR  AN  ALIEN. 

In  the  society  in  which  man  lives,  he  is  either  a 
citizen  or  he  is  an  alien.  The  distinction  is  this : that 
an  alien  enjoys  tlie  same  rights  and  protection  in  the 
community  as  does  the  citizen,  excepting  the  privilege 
of  participating  in  the  legislative  branch  of  the  govern- 
ment, of  legislating  and  being  represented  in  the  legis- 
lative department. 

There  is  no  intermediate  relation  to  the  society. 

The  rule  which  governs  as  to  aliens  within  the 
United  States  is  found  in  Carlisle  vs.  United  States, 
16  Wallace,  148,  ‘^Aliens  domiciled  in  the  United 
States  owe  a temporary  and  local  allegiance  to  the 
government  of  the  United  States;  they  are  bound  to 
obey  all  the  laws  of  the  country  not  immediately  re- 
lating to  citizenship  during  their  residence,  and  are 
equally  amenable  with  citizens  for  any  infractions  of 
these  laws.” 

HOW  MAN  BECOMES  A MEMBER  OP  SOCIETY. 

The  rules  which  govern  the  acquisition  of  citizen- 
ship are  not  identical.  There  is  and  has  been  a want 
of  uniformity  in  the  positive  laws  of  states  on  this 
subject,  and  consequently  in  the  practice. 

The  two  sources  of  the  law  of  government,  the  one  as 
based  on  the  feudal  law  and  the  other  as  based  on  the 
natural  law  of  man,  and  the  recognition  by  society  of 
certain  inalienable  rights  in  man,  are  in  conflict. 


7 


50 


THE  LAW  OF  CITIZENSHIP 


CITIZENSHIP  BY  BIRTH  — THE  ENGLISH  RULE. 

This  is  the  doctrine  of  England,  and  has  been  for 
centuries.  By  the  common  law  of  England,  the  rule 
was  established  that  every  person  born  within  the 
dominion  of  the  crown,  no  matter  whether  of  English 
or  of  foreign  parentage,  and  in  the  latter  case,  whether 
the  parents  were  settled  or  merely  temporarily  sojourn- 
ing in  the  countiy,  was  an  English  subject. 

This  doctrine  was  carried  further  by  the  statute  7 
Anne,  chapter  5,  section  3 : “ The  children  of  all  nat- 
ural born  subjects,  born  out  of  the  allegiance  of  her 
majesty,  her  heirs  and  successors,  shall  be  deemed, 
adjudged  and  taken  to  be,  natural  born  subjects  of 
this  kingdom,  to  all  intents,  constructions  and  pur- 
poses whatsoever.” 

The  doctrine  was  carried  still  further  by  statute  4 
George  II,  chapter  21,  and  13  George  III,  chapter  21, 
by  which  the  children  or  grandchildren  of  English  sub- 
jects born  out  of  the  ligiance  of  his  majesty,  his  heirs 
and  successors,  could  not  throw  off  their  allegiance  to 
the  British  crown. 

DO  THESE  RULES  BEAR  WITHIN  THEM  A SPIRIT  OF  CONTRA- 
DICTION ? 

First  — for  what  reason  under  the  rule  of  the  common 
law,  did  one  become  a subject  of  the  crown  ? The 
answer  is  plain ; it  was  for  reason  of  the  principle  of 
the  feudists,  as  found  in  the  jus  soli ; by  birth  on  an 
inanimate  piece  of  land,  was  created  a relation  to  that 
land  which  was  immutable.  Not  alone  was  the  rule 
applicable  to  those  children  whose  parents  were  held 
in  an  immutable  relation  to  the  piece  of  land  on  which 
they  were  born,  but  also,  to  the  children  of  parents 


IN  THE  UNITED  STATES. 


51 


who  were  or  who  were  not  held  in  an  immutable 
relation  to  a piece  of  land  in  some  other  country  than 
England. 

For  reason  of  intentional  or  accidental  birth  within 
the  realm  of  Great  Britain,  the  immutable  relation  to 
the  soil  was  established,  regardless  of  the  parentage  of 
the  parent,  whether  English  or  foreign. 

This  rule  was  hedged  in  by  another  rule:  ^‘Nemo 
exure  potest  patriam,”  which  was  designed  to  enforce 
the  rule  of  the  feudists,  that  man  was  an  immovable 
and  belonged  to  the  piece  of  inanimate  land  on  which 
he  was  born,  there  to  remain  and  abide,  subject  to  his 
lord,  the  king. 

Second  — for  what  reason  did  children  of  English 
parents  when  born  without  the  ligiance  of  the  crown 
become  subjects  of  Great  Britain  ? It  could  not  have 
been  nor  can  it  be,  for  reason  of  any  immutable  rela- 
tion to  the  inanimate  piece  of  land  on  which  the  child 
was  born.  It  was  not  pursuant  to  the  common  law 
rule  of  England.  This  rule  had  no  force  out  of  the 
realm.  The  explanation  is  here : The  rule  as  laid 
down  in  7 Anne,  chapter  5,  section  3,  and  subsequent 
statutes,  extending  the  rule  to  children  and  grand- 
children, was  passed  at  a time  in  the  history  in  Eng- 
land, when  the  inflexible  nature  of  the  common  law  rule 
must  be  changed.  Subjects  of  England,  for  commer- 
cial and  similar  purposes  must  sojourn  in  foreign 
countries.  Therefore  in  accordance  with  that  broad 
principle  known  to  the  English  law  at  that  period,  by 
which  solemn  Jugglery  was  permissible,  the  feudal 
theory,  which  was  contained  in  the  principle  found  in 
Jus  soli,  was  relaxed. 


52 


THE  LAW  OF  CITIZENSHIP 


Permits  to  depart  from  the  realm  were  granted  and 
the  theory  of  a personal  relation  to  the  sovereign  was 
created,  which  was  held  to  be  as  equally  immutable 
as  was  the  theory  of  an  immutable  relation  to  an  in- 
animate piece  of  land,  which  it  superseded.  This  was 
the  first  extension  of  the  rule  of  allegiance  to  the 
children  of  English  subjects  born  out  of  the  realm. 
Allegiance  was  not  unknown  to  the  English  law  at 
this  time ; it  was  adjunctive  to  the  theory  of  jus  soli, 
and  was  considered  as  the  connecting  link  through  an 
inanimate  piece  of  land,  by  which  an  English  subject 
was  bound  to  his  sovereign. 

The  term  used  in  the  statute  is  ligiance,”  mean 
ing  the  realm,  within  which  allegiance  was  due  to  the 
sovereign ; allegiance  being  immutable  within  the 
realm  by  the  statute,  it  was  made  equally  binding  on 
English  subjects  without  the  realm  ; not  alone  on  them, 
but  also  on  their  children  and  children’s  children  in 
foreign  states. 

WIIAT  WAS  THE  EFFECT  OF  THESE  RULES  ? 

A subject  of  a foreign  power  born  in  England  be- 
came a subject  of  Great  Britain.  A subject  of  England 
born  in  a foreign  country  remained  an  Englishman,  as 
did  his  children  and  his  children’s  children.  Suppose 
in  the  foreign  state  to  which  an  English  subject  mi- 
grated, the  same  rule  as  was  laid  down  by  the  English 
common  law  prevailed  ; for  example,  in  Spain ; what 
would  be  the  citizenship  of  the  child  born  of  English 
parents,  sojourning  in  Spain?  Under  the  Spanish  rule 
it  would  be  a Spaniard,  but  under  the  statute  of  Anne 
it  would  remain  an  English  subject.  Reverse  the  prop- 
osition. A child  of  Spanish  parents  born  in  England 


IN  THE  UNITED  STATES. 


53 


would  be  an  Englisb  subject,  providing,  however,  if  a 
similar  statute  prevailed  in  Spain  to  the  statute  of 
Anne,  the  child  would  be  a Spaniard. 

The  unreasonableness  and  impracticability  of  these 
rules  are  self-e\nLdent.  They  were  an  impediment  to 
social  intercourse  between  countries  for  the  advance- 
ment of  arts,  sciences  and  commerce ; they  were  restric- 
tions on  the  natural  rights  of  man ; an  interference 
with  man’s  enjoyment  of  life,  liberty  and  the  pursuit 
of  happiness.  It  was  an  attempt  to  make  the  English 
law  the  law  of  the  world. 

The  enforcement  of  the  rule  became  impracticable 
and  was  abandoned. 

THE  LAW  AS  TREATED  BY  ENGLAND  IN  HER  RELATIONS  TO 
HER  SUBJECTS  IN  FOREIGN  COUNTRIES. 

In  this  connection  the  rule  of  the  English  common 
law  and  the  statutes  hereinbefore  referred  to  must  be 
borne  in  mind. 

With  the  Argentine  Kepublic  : In  this  country, 
citizenship  by  reason  of  birth  was  the  acknowledged 
principle.  Not  alone  did  this  apply  to  children  of 
citizens,  but  also  to  children  of  aliens  born  within  the 
country.  In  this  regard,  the  law  was  precisely  the 
same  as  in  England. 

In  1845,  Sir  Kobert  Peel  expressed  an  opinion  on 
the  question.  It  appeared  that  the  general  law  was 
this : that  the  son  or  grandson  of  a British  subject 
born  abroad  was  also  a British  subject.  But  he  could 
not  deny  that  children  born  in  a foreign  state  were 
not  also  subjects  of  that  state. 

Such  was  the  law  in  this  country,  for  the  children 


54 


THE  LAW  OF  CITIZENSHIP 


of  foreigners  born  in  her  majesty’s  dominion  were 
British  subjects.  If  the  children  of  British  residents, 
born  at  Buenos  Ayres,  were  born  out  of  that  state,  the 
authorities  there  had  no  right  to  make  them  Buenos 
Ayres’  subjects.  If,  however,  the  children  of  British 
subjects  were  born  at  Buenos  Ayres,  and  continued  to 
reside  there,  they  retained  the  rights  of  citizens  of 
that  place,  but  with  those  rights  they  also  imposed  on 
them,  the  burdens  and  duties  of  citizens,  and  they 
were  liable  to  the  laws  of  Buenos  Ayres. 

The  position  taken  by  Mr.  Peel,  was  a perfect  recog- 
nition of  the  force  of  the  laws  of  the  Argentine 
Republic,  and  the  right  of  that  government  to  enforce 
military  duties,  and  actual  services  on  children  of 
British  subjects  born  within  the  country. 

This  enforcement  caused  considerable  discontent, 
and  such  English  subjects  received  this  satisfaction 
from  Lord  Palmerston : That  a British  subject  could 
not  divest  himself  of  his  allegiance  by  submitting  to 
any  local  enactment  compelling  him  to  wear  any  par- 
ticular uniform  or  badge  in  a foreign  country,  in 
which  he  may  think  proper  to  reside,  and  that  he  does 
not  thereby  forfeit  his  right  to  be  protected  by  his 
own  government.” 

Notwithstanding  this,  British  subjects  were  called 
upon  to  serve  in  the  national  guard  of  the  country 
until  the  year  1858,  when  the  government  of  Buenos 
Ayres  passed  a law  permitting  its  subjects  to  furnish 
substitutes  for  service  in  the  national  guard  of  the 
country.  In  so  doing,  they  did  not  distinguish  in 
favor  of  those  born  in  the  country,  whether  of  citizens 
or  aliens. 


IN  THE  UNITED  STATES. 


55 


Later  a treaty  was  proclaimed  between  the  two 
countries,  to  which,  the  right  of  choice  as  between 
English  and  Argentine  Republican  citizenship  was 
given  to  English  subjects. 

After  this  treaty,  all  the  questions  were  decided  by 
reference  to  the  acts  of  the  subject  claiming  protection, 
whether  he  had  made  a choice  or  not.  If  none  had 
been  made,  and  he  had  failed  to  optate  to  become  a sub- 
ject of  England,  he  was  held  as  a subject  of  the 
Argentine  Rejiublic. 

With  Austria.  In  1833,  the  Austrian  government 
issued  a decree  that  all  foreigners,  who  at  that  date 
had  resided  uninterruptedly  in  Venetia  and  Ionia  for 
ten  years,  were  allowed  to  free  themselves  from  Aus- 
trian citizenship,  upon  proof  that  they  had  no  intent 
of  becoming  Austrian  subjects.  The  proof  was  to  be 
furnished  within  six  months.  The  effect  of  this  was, 
that  many  former  British  subjects  were  claimed  as 
Austrians. 

Lord  Palmerston  declared,  that  according  to  Aus- 
trian law,  they  were  liable  to  be  considered  as 
Austrian  subjects  and  consequently  were  not  entitled 
to  exemption  from  burdens  for  reason  of  their  claim- 
ing English  citizenship. 

With  Belgium.  Here  the  question  arose  as  to  the 
rights  of  naturalized  English  subjects  in  Belgium.  It 
was  inquired  as  regards  children  of  naturalized  British 
subjects  born  abroad.  The  answer  was  that  such 
children  follow  the  citizenship  of  the  father  during  mi- 
nority. 

But  this  is,  of  course,  subject  to  the  local  law  which 
may  deal  with  children  born  in  the  country,  whatever 


66 


THE  LAW  OF  CITIZENSHIP 


may  be  the  circumstances  of  tbeir  fathers,  as  natural 
born  subjects  of  the  country  in  which  they  were 
born. 

With  Brazil.  By  article  VI  of  the  constitution  of 
Brazil,  the  offspring  of  all  foreigners  born  in  Brazil 
are  Brazilians,  with  the  exception  of  those  born  for- 
eigners who  may  be  in  Brazil,  in  the  service  of  their 
own  state.  The  English  government  failed  to  bring 
about  a change  in  the  Brazilian  constitution,  and  the 
law  remained  the  same  as  it  was  in  the  Argentine  Re- 
public, prior  to  the  treaty  between  that  country  and 
England. 

The  demand  of  the  English  government  was  to  the 
point  that  children  of  English  subjects,  born  in  Brazil, 
should  follow  the  citizenship  of  their  parents  to  the 
age  of  twenty-one  and  then  optate  to  remain  Brazilian 
subjects  or  become'  English  subjects. 

This  desire  to  have  recognized  the  rule  that  the 
child  follows  the  citizenship  of  the  parent,  and  was  a 
citizen  of  the  country  of  which  the  parent  was  a citi- 
zen, regardless  of  place  of  birth,  was  in  conflict  with 
the  English  rule.  The  Brazilian  government  did  not 
accede  to  the  demand. 

With  Colombia.  Only  once  the  question  arose, 
and  that  was  the  case  of  Montaya,  who  became  a natu- 
ralized subject  of  England.  The  English  authorities 
held  that  this  fact  did  not  exempt  him  from  the  opera- 
tion of  the  law  of  the  state  of  his  birth  and  natural  al- 
legiance while  he  resides  in  that  state. 

With  Denmark.  The  case  of  Bainals  demanded 
much  attention.  Rainals  was  born  in  Denmark,  of 
English  parents.  The  Danish  law  decides  that  chil- 


IN  THE  UNITED  STATES, 


57 


dren  of  foreigners  Lorn  in  Denmark  can  claim  citizen- 
ship in  Denmark  after  a continued  residence  up  to  the 
eighteenth  year.  Rainals  took  an  oath  to  the  Danish 
crown,  and  notwithstanding  this,  he  claimed  British 
protection. 

Lord  John  Bussell  took  the  position : It  is  not  de- 
nied that  Mr.  Bainals  was  born  in  Denmark,  and  al- 
though he  renounced  citizenshijj,  this  does  not  relieve 
him  from  the  obligations  of  allegiance  to  the  crown  of 
Denmark. 

With  France.  Many  questions  arose  between  these 
countries  and  were  much  debated  until  the  year  1857, 
at  which  time  Lord  Clarendon  laid  down  the  law  of 
England,  as  follows  : The  children  of  British  subjects, 
although  born  abroad,  if  their  fathers  or  their  grand- 
fathers by  the  father’s  side  were  natural  born  subjects, 
are,  by  certain  British  statutes,  to  be  deemed  natural 
born  subjects  themselves  to  all  intents  and  purposes 
in  England.  But  neither  these  statutes  nor  the  gen- 
eral principles  of  English  or  international  law,  or  of 
reciprocity  or  comity,  so  far  as  Great  Britain  is  con- 
cerned, would  justify  her  in  maintaining  that  such 
persons  are  British  subjects  within  the  true  intent  and 
meaning  of  a treaty  with  a foreign  nation,  in  which 
their  case  is  not  specially  provided  for,  or  in  contend- 
ing that  they  are,  while  residing  in  such  foreign 
country,  exempt  from  the  obligations  incident  to  their 
status  as  natural  born  subjects  or  citizens  of  such  for- 
eign country  of  their  actual  birth  and  residence. 
Great  Britain  may  confer  on  "them  any  privileges  as 
far  as  her  own  territories  are  concerned,  but  no  such 
privileges  can  avail  as  against,  or  in  derogation  of  their 


58 


THE  LAW  OF  CITIZENSHIP 


antecedent  natural  and  legal  obligations  to  tbe  country 
of  their  birth.” 

In  1858  the  Earl  Malmesbury  expressed  the  follow- 
ing opinion  in  the  Walewski  case  : “ If  Walewshi  had 
been  born  in  France  of  English  parents  and  had  volun- 
tarily returned  to  France,  he  would  have  been  a Brit- 
ish subject  in  England,  but  he  would  not  have  been 
entitled  to  British  privileges  or  protection  in  France 
as  against  the  country  of  his  actual  birth  and  domicile. 
But  Walewski  was  born  in  England  and  as  such  is  a 
natural  born  subject  of  her  majesty.” 

In  1859  Lord  John  Bussell  laid  down  the  rule  as 
to  naturalized  subjects  : That  they  are  not  entitled 

to  British  protection  upon  return  to  the  country  of 
their  birth.” 

With  Germany.  In  1863  Lord  John  Bussell  gave 
his  opinion  as  to  the  status  of  native  Germans  natural- 
ized in  England : that  a foreigner  who  has  become  a 
naturalized  British  subject  cannot  claim  British  pro- 
tection against  the  operation  of  the  law  of  his  native 
country,  so  as  to  exempt  himself  from  any  penalties 
which  the  law  of  his  native  country  may  inflict  upon 
him  when  he  returns  to  it.” 

With  the  Hanse  Towns.  Lord  Palmerston  laid 
down  the  following  instructions  for  those  states : 

I have  to  authorize  you  to  give  way  to  the  liability 
of  British  subjects  to  serve  in  the  civic  guard  for  the 
protection  of  the  city  in  which  they  reside,  but  you 
should  strenuously  resist  any  pretension  to  require 
British  born  subjects,  whether  admitted  or  not  to  the 
rights  of  citizenship,  to  serve  in  the  contingent ; because 
that  contingent  is  not  a force  raised  and  embodied  for 


IN  THE  UNITED  STATES. 


69 


the  maintenance  of  order  within  the  city  and  state,  but 
is  a portion  of  the  army  of  Germany  and  is  organized 
for  the  purpose  of  foreign  war.  It  thus  might  happen, 
not  only  that  British  subjects  might  be  brought,  and 
even  against  their  will,  into  conflict  with  troops  of  a 
state  in  amity  or  alliance  with  England,  but  that  they 
might  actually  be  compelled  to  take  the  field  against 
the  troops  of  their  own  country  and  sovereign.” 

The  case  of  Bosdet  presents  an  opinion  of  the  law 
where  it  is  identical  as  it  was  in  England.  Bosdet  was 
born  in  England  of  parents  natives  of  Hamburg,  who 
were  domiciled  in  Hamburg  at  time  the  services  were 
demanded  of  his  son.  The  foreign  oflSce  decided  as 
follows : The  fact  that  Alfred  Bosdet  was  born  in 
England,  confers  on  him,  according  to  the  law  of  this 
country  the  character  of  an  English  subject ; and  there 
arises  or  may  arise  in  these  cases  a conflict  of  jurisdic- 
tion. But  as  the  law  of  England  also  considers  the 
son  of  a native  subject,  wherever  he  is  born,  as  an 
English  citizen,  the  English  government  cannot  fairly 
complain  of  the  law  of  Hamburg,  which  is  in  this  re- 
spect the  same,  nor  can  it  interfere  with  the  execution 
of  that  law  within  the  town  of  Hamburg.  You  may 
accordingly  present  to  the  authorities  of  Hamburg, 
that  Alfred  Bosdet  has  become  an  English  subject, 
and  ask  as  a matter  of  comity  that  his  name  may  be 
therefore  taken  off  the  military  list.  This  cannot  be 
insisted  on  as  a matter  of  right.” 

With  Guatemala.  The  same  controversy  arose  as 
with  Buenos  Ayres,  and  the  English  government  was 
unable  to  maintain  its  position  until  1859  when  it  was 
decreed  that  children  of  English  subjects  born  in 


60 


THE  LAW  OF  CITIZENSHIP 


Guatemala  should  follow  the  parentage  of  the  parent 
until  the  age  of  twenty-one  and  then  optate  to  become 
English  subjects  or  remain  Guatemalans. 

With  Italy.  The  leading  case  in  Italy  seems  to 
be  the  case  of  John  Vertu,  born  in  England  of 
Sardinian  parents.  The  Italian  government  con- 
tended that  he  was  a citizen  of  Italy.  Lord  Pal- 
merston expressed  the  following  opinion  : I have 

now  to  state  that  as  a general  principle,  children 
of  alien  friends  born  in  the  British  dominions  be- 
come, de  facto,  subjects  of  Great  Britain,  al- 
though not  absolutely,  and  in  all  cases  to  the  entire 
cessation  of  all  bonds,  privileges  and  duties  which 
might  attach  to  them,  as  children  of  the  state  to  which 
their  parents  might  belong,  particularly  when  they 
themselves  return  to  and  abide  in  their  parents’  coun- 
try, and  claim  to  be,  and  act  as  subjects  thereof.  The 
right  to  be  considered  as  British  subjects,  if  fully  and 
completely  acquired,  and  not  abandoned  or  forfeited, 
may  be  lawfully  extended  to  them  in  the  foreign  state 
of  which  their  parents  were  subjects ; and  it  is  not 
necessary  in  order  to  render  his  children  British  sub- 
jects, that  an  alien  friend  transferring  his  domicile  to 
Great  Britain,  should  previously  have  obtained  his 
legal  liberation  from  his  duties  and  obligations  to  the 
state  to  which  he  had  originally  belonged.” 

The  leading  case  with  the  Neapolitan  government, 
was  the  case  of  Benedict  and  John  Steuart.  The 
father  was  an  English  born  subject,  and  married  a 
Messinese  ; the  children  were  born  in  Naples,  and  the 
question  arose  as  to  their  citizenship.  The  position 
taken  by  the  Neapolitan  authorities  was  as  follows : 


IN  THE  UNITED  STATES. 


61 


That  the  father  having  been  born  in  England,  was  an 
English  subject,  and  unless  his  sons,  on  coming  of  age 
declared  their  intention  of  being  naturalized,  and  had 
gone  through  the  formalities  prescribed  by  the  Nea- 
politan law  for  that  purpose,  they  remained  British 
subjects.” 

With  Norway.  The  leading  case  was  that  of 
W alter  F oreman.  F oreman  was  a native  born  subject  of 
England,  and  had  acquired  a domicile  in  Norway.  He 
was  conscripted  for  military  service  under  the  Norwe- 
gian code,  foreigners  who  have  acquired  a domicile  in 
the  country  are  rendered  liable  to  military  duty.”  He 
was  advised  to  try  the  case  in  the  courts.  In  this, 
however,  he  was  dissuaded  on  the  grounds  of  equity, 
that  in  the  absence  of  a convention  with  England,  by 
which  he  would  be  exempt,  he  could  not  claim  exemp- 
tion on  the  ground  that  Norwegians  were  not  subject 
to  any  such  military  service  in  England. 

With  Portugal.  The  government  of  Portugal 
claimed  as  subjects  the  children  of  all  subjects 
whether  of  Portugal  or  aliens  born  within  the  king- 
dom. This  position  was  denied  as  being  correct  in  its 
application  to  children  of  British  subjects  born  in 
Portugal.  Asa  result  of  the  controversy.  Lord  Aber- 
deen in  1843,  expressed  the  following  opinion : 
“Although  by  the  statute  law  of  this  country  (England), 
all  children  born  out  of  the  ligiance  of  the  king, 
whose  parents  or  grandparents  by  the  father’s  side 
were  natural  born  subjects,  are  themselves  entitled  to 
enjoy  British  rights  and  privileges  while  within  Brit- 
ish territory,  yet  the  effect  of  British  statute  law  can- 
not extend  so  far  as  to  take  away  from  the  government 


62 


THE  LAW  OF  CITIZENSHIP 


of  the  country,  in  which  these  persons  may  have  been 
born,  the  right  to  claim  them  as  natural  born  subjects, 
at  least  so  long  as  they  remain  in  that  country.” 

By  the  common  law  of  England,  all  persons  born 
within  the  king’s  legiance,  whether  the  children  of 
British  subjects  or  of  foreigners,  are  deemed  to  be  sub- 
jects of  Great  Britain.  And  if  the  law  of  any  foreign 
state,  upon  this  point  be  the  same  as  the  English  law^ 
and  if  such  foreign  state  places  persons  born  within 
its  territory  upon  the  same  footing  as  its  own  subjects 
or  citizens,  the  government  of  that  state  has  the  right 
to  exact  the  service  of  a subject  from  such  persons, 
even  if  they  may  have  been  the  children  of  foreigners, 
at  least  while  such  children  remain  in  the  country  of 
their  birth.” 

With  Prussia.  The  leading  case,  is  that  of  Cross- 
thwaite,  who  was  her  majesty’s  consul,  and  a natural- 
ized subject  of  Prussia.  The  question  was,  whether 
his  sons  were  liable  to  military  duty.  It  is  not  stated 
where  the  sons  were  born.  The  opinion  was,  that 
the  sons  of  a naturalized  Prussian  subject  owing  al- 
legiance to  her  majesty  who  are  between  the  ages  of 
seventeen  and  twenty-five  and  are  resident  in  Prussia 
would  be  compellable  to  serve  in  the  Prussian  army.” 

With  Spain.  In  1841  the  English  government  gave 
notice  to  its  consuls  in  Spain  that  it  would  not  pro- 
tect the  children  of  English  subjects  born  in  Spain 
as  against  the  laws  of  that  country.  In  1856  children 
of  English  subjects  born  in  Spain  made  claims  on  the 
English  government  for  protection. 

Lord  Clarendon  decided  that  their  claims  were  inad- 
missible as  against  the  claim  made  on  them  by  Spain. 


IN  THE  UNITED  STATES. 


63 


The  leading  case  is  that  of  Joseph  Argumiborn ; at 
the  term  of  his  birth  his  father  was  domiciled  in  Spain, 
but  as  an  English  subject.  The  English  government 
held  that  the  son  was  not  entitled  to  claim  British 
protection  against  any  obligations  arising  from  his 
Spanish  allegiance,  although  by  an  English  statute  he 
would  be  entitled  to  the  privileges  of  a natural  born 
English  subject  in  Great  Britain. 

With  the  United  States  of  America.  The  in- 
flexible rule  of  the  English  law  was  broken  by  the 
treaty  with  the  United  States  in  1783.  Prior  to  the 
ratification  of  this  treaty  the  colonists  in  America  were 
English  subjects  owing  allegiance  to  the  English  king. 
The  common  law  and  the  statute  law  were  in  full 
force  in  the  colonies.  By  this  treaty,  the  English 
king  acknowledged  the  United  States  to  be  free, 
sovereign  and  independent  states,  that  he  treats  with 
them  as  such  and  for  himself,  his  heirs  and  successors 
relinquishes  all  claim  to  the  government,  proprietary 
and  territorial  rights  of  the  same  and  every  part 
thereof. 

There  remained  for  some  years  posts  and  places 
within  the  territory  of  the  United  States  occupied  by 
English  troops  and  garrisons.  In  1794  a further  treaty 
was  entered  into,  by  which  these  troops  and  garrisons 
should  be  withdrawn  and  the  right  of  option  granted 
to  English  traders  and  settlers,  within  the  territory 
of  the  United  States  to  become  citizens  of  the  United 
States  or  remain  English  subjects ; they  should  not  be 
compelled  to  become  citizens  of  the  United  States  but 
could  remain  as  English  subjects  ; they  were  obliged 
to  exercise  the  right  of  option  within  one  year  from  the 


64 


THE  LAW  OF  CITIZENSHIP 


evacuation  by  the  troops  and  garrisons  as  stipulated  in 
the  treaty.  The  declaration  to  become  citizens  of  the 
United  States  must  be  made  to  the  government  of 
Great  Britain,  otherwise  such  traders  and  settlers  were 
to  be  considered  as  citizens  of  the  United  States. 

Other  than  these  no  act  was  passed  by  the  law- 
making power  of  Great  Britain,  by  which  citizens  of 
the  United  States  were  to  be  treated  as  citizens  and 
entitled  to  protection  as  such,  within  the  realm  of  the 
English  king. 

WHAT  WAS  THE  EFFECT  OF  THIS  TREATY  BY  WHICH  THE 
RIGHT  OF  OPTION  WAS  GRANTED  ? 

The  English  subjects  who  did  not  exercise  the  right 
of  option  within  the  year  did  not  for  reason  of  the  terms 
of  the  treaty  become  ipso  facto  citizens  of  the  United 
States.  Further  acts  on  the  part  of  the  subject  were 
essential.  His  failure  to  declare  his  intent  to  his 
government  to  become  a citizen  of  the  United  States 
did  not  confer  citizenship.  He  could  do  so  only  by 
becoming  naturalized  in  accordance  with  the  act  of 
naturalization,  of  date  January  29,  1795. 

Until  this  act  had  been  complied  with  there  is  no 
question  that  any  change  in  citizenship  was  per. 
fected. 

In  case  the  change  was  made  without  the  de- 
claration of  the  intent  to  make  the  change  to  the 
government  of  England,  then  a complete  change  of 
citizenship  was  not  effected  for  reason  that  it  lacked 
the  essential  element  of  consent  express  or  implied  of 
the  English  king,  by  which  allegiance  was  absolved. 


IN  THE  UNITED  STATES. 


65 


TO  WHOM  DID  THE  TREATY  OF  1783  APPLY? 

The  application  of  the  exception  made  by  England 
was  only  to  colonists  then  living,  and  traders  and  set- 
tlers who  optated  to  renounce  their  allegiance  to  the 
English  king,  and  become  citizens  of  the  United 
States.  Neither  the  common  law  of  England  nor  the 
statute  law  were  altered.  Both  were  retained  and 
recognized  as  the  English  rule  pertaining  to  English 
subjects,  whether  born  within  or  without  the  realm  of 
England.  English  subjects  who  subsequently  mi- 
grated to  the  United  States  could  not  then  throw  off 
their  allegiance  to  the  English  sovereign.  No  law, 
which  was  in  force  in  the  United  States,  by  which 
they  could  comply,  could  release  them  from  their  alle- 
giance, and  excuse  them  from  service  to  their  king,  when 
again  within  his  realm.  The  exception  to  the  English 
law,  as  made  by  the  treaties  of  1783  and  1794  did  not 
have  reference^to  English  subjects  who  were  not  col- 
onists and  as  such  were  recognized  as  citizens  of  the 
United  States,  nor  to  the  traders  and  settlers  who  re- 
mained within  the  territory  of  the  United  States,  and 
were  given  the  right  of  option  at  the  time  of  the  with- 
drawal of  the  troops  and  garrisons  as  stipulated  in  the 
treaty. 

THE  EFFECT  OF  THIS  RULE  AS  TO  THE  UNITED  STATES. 

The  English  rule  remained  unchanged;  the  right 
of  an  English  subject  to  renounce  his  allegiance  was 
denied ; the  rule  extended  to  and  included  the  third 
generation,  each  of  which  were  English  subjects,  by 
the  English  law. 

Suppose  that  an  English  subject  migrated  to  the 
9 


66 


THE  LAW  OF  CITIZENSHIP 


United  States  and  tiere  became  a citizen  according  to 
the  positive  law  of  tbe  states,  what  would  be  bis  rela- 
tion to  the  English  sovereign  ? It  would  remain  un- 
changed under  the  English  rule,  and  the  English 
sovereign  could  demand  the  services  of  such  a subject 
who  had  become  a citizen  of  the  United  States,  if 
found  within  the  realm  of  Great  Britain. 

It  is  true  that  one  of  the  causes  which  led  to  the 
war  of  1812  between  England  and  the  United  States 
was  the  impressment  of  English  subjects,  who  had  be- 
come citizens  of  the  United  States,  into  the  service  of 
the  English  king. 

The  war  ended,  and  the  question  remained  un- 
settled. The  treaty  failed  to  recognize  the  right  of 
English  subjects  to  throw  off  their  allegiance  and  be- 
come citizens  of  the  United  States. 

It  may  be  argued  that  this  right  was  tacitly  implied, 
for  reason  that  no  occasion  arose  to  agitate  the  question 
again.  Such  an  argument  could  not  prevail  against  posi- 
tive laws  legally  promulgated  in  either  the  courts  of  the 
United  States  or  Great  Britain.  Had  the  right  been 
recognized  it  would  have  been  declared  by  both  coun- 
tries. As  no  recognition  was  given  to  it,  it  follows 
that  the  law  remained  unchanged.  It  was  not  until 
the  year  1870,  when  the  question  was  taken  up,  dis- 
cussed and  formally  settled.  At  that  time  the  presi- 
dent of  the  United  States  and  the  queen  of  the 
United  Kingdom  of  Great  Britain  and  Ireland,  being 
desirous  to  regulate  the  citizenship  of  citizens  of  the 
United  States  of  America  who  have  emigrated,  who 
may  migrate,  from  the  United  States  of  America  to  the 
British  dominions ; and  of  British  subjects  who  have 


IN  THE  UNITED  STATES. 


67 


emigrated  or  who  may  emigrate  from  the  British 
dominions  to  the  United  States  of  America,  have 
resolved  to  conclude  a convention  for  that  purpose ; 
it  was  concluded  as  follows  : 

The  President  of  the  United  States  of  America,  and 
her  majesty,  the  Queen  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  being  desirous  to  regulate 
the  citizenship  of  citizens  of  the  United  States  of 
America,  who  have  emigrated  or  who  may  emigrate 
from  the  United  States  of  America  to  the  British 
dominions,  and  of  the  British  subjects  who  have 
emigrated  or  who  may  emigate  from  the  British 
dominions  to  the  United  States  of  America,  have 
resolved  to  conclude  a convention  for  that  purpose, 
and  have  named  as  their  plenipotentiaries,  that  is  to 
say  : The  president  of  the  United  States  of  America, 
John  Lothrop  Motley,  esquire,  envoy  extraordinary 
and  minister  plenipotentiary  of  the  United  States  of 
America  to  her  Britannic  majesty;  and  her  majesty, 
the  Queen  of  the  United  Kingdom  of  Great  Britain 
and  Ireland,  the  Bight  Honorable  George  William 
Frederick,  earl  of  Clarendon,  Baron  Hyde  of  Hind  on, 
a peer  of  the  United  Kingdom,  a member  of  her  Brit- 
annic majesty’s  most  honorable  privy  council,  knight 
of  the  most  noble  order  of  the  garter,  knight  grand 
cross  of  the  most  honorable  order  of  the  bath  ; her 
Britannic  majesty’s  principal  secretary  of  state  for 
foreign  affairs ; who,  after  having  communicated  to 
each  other  their  respective  full  powers,  found  to  be 
in  good  and  due  form,  have  agreed  upon  and  con- 
cluded the  following  articles ; 


68 


THE  LAW  OF  CITIZENSHIP 


Article  I. 

Citizens  of  the  United  States  of  America,  who  have 
become,  or  shall  become,  and  are  naturalized  accord- 
ing to  law  within  the  British  dominions  as  British 
subjects,  shall,  subject  to  the  provisions  of  article  II, 
be  held  by  the  United  States  to  be  in  all  respects  and 
for  all  purposes  British  subjects ; and  shall  be  treated 
as  such  by  the  United  States. 

Beciprocally,  British  subjects  who  have  become,  or 
shall  become,  and  are  naturalized  according  to  law 
within  the  United  States  of  America,  as  citizens 
thereof,  shall,  subject  to  the  provisions  of  article  II, 
be  held  by  Great  Britain  to  be  in  all  respects  and  for 
all  purposes,  citizens  of  the  United  States,  and  shall 
be  treated  as  such  by  Great  Britain. 

Article  II. 

Such  citizens  of  the  United  States,  as  aforesaid,  who 
have  become,  and  are  naturalized  within  the  dominion 
of  her  Britannic  majesty  as  British  subjects,  shall  be 
at  liberty  to  renounce  their  naturalization,  and  to 
resume  their  nationality  as  citizens  of  the  United 
States,  provided,  that  such  renunciation  be  publicly 
declared  within  two  years  after  the  exchange  of  the 
ratification  of  the  present  convention. 

Such  British  subjects,  as  aforesaid,  who  have  be- 
come and  are  naturalized  as  citizens  within  the  United 
States,  shall  be  at  liberty  to  renounce  their  natural- 
ization and  to  resume  their  British  nationality,  pro- 
vided, that  such  renunciation  be  publicly  declared 
within  two  years  aftei  the  12th  day  of  May,  1870. 

The  manner  in  which  this  renunciation  may  be 


IN  THE  UNITED  STATES. 


69 


made  and  publicly  declared,  shall  be  agreed  upon  by 
the  governments  of  the  respective  countries. 

Article  III. 

If  any  such  citizen  of  the  United  States,  as  afore- 
said, naturalized  within  the  dominions  of  her  Britannic 
majesty,  should  renew  his  residence  in  the  United 
States,  the  United  States  government  may,  on  his  own 
application  and  on  such  conditions  as  that  government 
may  think  fit  to  impose,  readmit  him  to  the  character 
and  privileges  of  a citizen  of  the  United  States ; and 
Great  Britain  shall  not,  in  that  case,  claim  him  as  a 
British  subject,  on  account  of  his  former  naturalization. 

In  the  same  manner,  if  any  British  subject  as  afore- 
said, naturalized  in  the  United  States,  should  renew 
his  residence  within  the  dominions  of  her  Britannic 
majesty,  her  majesty’s  government  may,  on  his  own 
application  and  on  such  conditions  as  that  government 
may  think  fit  to  impose,  readmit  him  to  the  character 
and  privileges  of  a British  subject,  and  the  United 
States  shall  not,  in  that  case,  claim  him  as  a citizen  of 
the  United  States  on  account  of  his  former  naturaliza- 
tion. 

THE  EFFECT  OF  THE  ACT  AND  TREATY  OF  1870  IN  THE 
UNITED  STATES. 

The  retroactive  effect  which  it  was  intended  the 
act  should  have,  is  conclusive  that  the  rigidity  of  the 
English  rule  of  the  common  law  and  of  the  statutes  of 
Anne  and  the  Georges  had  not  been  relaxed  to  that 
date. 

The  relation  of  British  subjects  who  had  migrated 


70 


THE  LAW  OF  CITIZENSHIP 


to  the  United  States,  and  there  become  citizens,  had 
remained  unchanged  under  the  English  law. 

By  the  law  of  the  United  States  they  were  regarded 
as  citizens  of  the  United  States;  they  had  abjured  al- 
legiance to  the  English  sovereign  without  right. 

Could  such  citizens  enjoy  full  rights  and  privileges 
in  the  United  States  and  equal  protection  abroad  with 
other  citizens  ? They  could  not.  There  their  relation 
to  the  English  sovereign  had  not  been  changed  ; they 
owed  allegiance,  if  within  three  generations  of  English 
descent,  which  was  immutable.  They  were  not  in  the 
enjoyment  of  full  citizenship.  They  were  not  citizens 
at  home  and  abroad  as  citizens  should  be  with  full  re- 
comition  as  such. 

Assume  that  the  son  of  an  English  subject,  whose 
father  had  become  a citizen  by  naturalization,  in  the 
United  States,  had  gone  to  England  prior  to  1870  ; 
what  would  have  been  his  legal  status  under  the 
English  rule  ? It  is  perfectly  clear.  No  doubt,  to 
have  impressed  him  into  the  sovereign’s  service,  would 
have  caused  the  rise  of  unfriendly  feelings  between 
the  two  countries,  yet  this  might  not  have  changed 
the  law,  any  more  than  it  did  in  1812,  at  which  time 
the  question  was  vividly  discussed  in  both  countries. 

By  the  act  of  1870,  the  acts  of  British  subjects  who 
have  abjured  the  realm,  under  the  naturalization  laws 
of  the  United  States,  have  been  legitimatized,  and  by 
it  they  have  been  admitted  and  recognized  to  enjoy 
full  membership  both  at  home  and  abroad ; which 
rights  they  did  not  enjoy  prior  to  1870. 

The  rule  which  governed  prior  to  the  passage  of 
this  act  is  found  in  Warren’s  case,  12  Op.  Atty.-Genls.: 


IN  THE  UNITED  STATES. 


71 


It  is  well  established  English  law  that  a native  born 
subject  of  Great  Britain  is  not  capable  of  throwing  off 
his  allegiance.” 

Lord  Grenville,  in  his  despatch  to  Secretary  King, 
March  27,  1797,  declares,  ^^No  British  subject  can  by 
such  form  of  renunciation  ^s  that  which  is  prescribed 
in  the  American  law  of  naturalization  divest  himself 
of  his  allegiance  to  his  sovereign.  Such  a declaration 
of  renunciation  by  any  of  the  king’s  subjects,  would, 
instead  of  operating  as  a protection  to  them,  be  con- 
sidered an  act  highly  criminal  on  their  part.” 

In  Fitch  V.  Webber,  6 Hare,  51,  the  rule  is  as  fol- 
lows : Abjuration  by  a British  subject  of  his  allegi- 
ance to  the  crown  and  his  promise  of  obedience  to  a 
foreign  state,  although  it  might  make  him  liable  for 
high  treason,  does  not  divest  him  of  the  character  of  a 
British  subject,  and  does  not  disqualify  the  children 
or  grandchildren  of  such  British  subjects  of  being 
British  subjects.” 

DID  THE  UNITED  STATES  ADOPT  THE  ENGLISH  RULE  OF 
CITIZENSHIP  BY  BIRTH  ? 

In  the  declaration  of  independence  it  is  clearly  set 
forth : That  all  men  are  created  equal ; that  they 

are  endowed  by  their  Creator  with  certain  inalienable 
rights  ; that  among  these  are  life,  liberty  and  the  pur- 
suit of  happiness ; that  to  secure  these  rights,  govern- 
ments are  instituted  among  men,  deriving  their  just 
powers  from  the  consent  of  the  governed.” 

Substantially  the  same  phraseology  is  found  in  the 
declaration  of  rights  and  bills  of  rights  of  the  various 
states  which  compose  the  United  States. 


72 


THE  LAW  OF  CITIZENSHIP 


There  can  be  no  mistake  in  the  spirit  of  these  dec- 
larations. 

The  declaration  of  independence  contains  a series  of 
grievances  for  which  redress  had  been  sought  from  the 
English  king  and  which  had  not  been  obtained. 

The  primary  purpose  was  to  combat  the  source  of 
law  and  government,  under  which  they  had  lived,  and 
is  explained  by  the  words : “ Governments  are  in- 

stituted among  men,  deriving  their  just  powers  from  the 
consent  of  the  governed.” 

They  had  lived  under  the  rule  that  the  king  could 
do  no  vsn’ong,  and  was  the  source  from  which  emanated 
all  law  and  Justice,  flowing  in  pure  streams  to  all  the  re- 
lations of  life  into  which  man  enters. 

It  was  under  this  rule,  by  which  the  laws  of  Eng- 
land were  interpreted.  With  such  an  interpretation, 
no  redress  could  be  given  to  the  wrongs  complained  of 
by  the  colonists  Whatever  law  was  enacted  was 
enacted  for  their  good  and  was  promulgated  by  a 
sovereign  who  could  do  no  wrong. 

The  sovereign  had  done  no  wrong  to  the  colonists 
in  America  ; there  was  nothing  to  be  redressed  ; their 
petitioners  were  refused  a hearing  ; their  petitions  were 
not  heeded. 

The  English  principles  were  structural  in  their  form 
of  government.  As  Sir  Vernon  Harcourt  expresses 
it : The  rule  of  determining  nationality  in  England 

was  purely  of  feudal  origin.”  They  made  up  the 
expressed  form  of  government  as  it  confronted 
the  outside  world.  They  were  the  bulwarks  of  what 
was  declared  by  the  English  sovereign  to  be,  the 
rights  and  privileges  of  his  subjects.  They  were  in 


IN  THE  UNITED  STATES. 


73 


no  sense  conventional  in  their  nature,  as  between  sub- 
ject and  sovereign.  There  was  no  provision  of  law  by 
which  the  English  subject  could  convene  with  his 
king.  Suffrage  was  not  free.  A subject  did  not  en- 
joy the  right  to  represent  and  be  represented  suo 
nomine.  Contrast  this  relation  with  the  conventional 
form  of  government  as  declared  in  the  United  States, 
in  which  every  member  entitled  to  full  rights  of  citi- 
zenship partakes  ; in  which  every  such  a member  is  an 
acting  ingredient,  and  partakes  of  the  whole,  and  the 
difference  is  manifest. 

In  support  of  the  adoption  by  the  citizens  of  the 
United  States  of  the  feudal  principles,  two  arguments 
have  been  adduced,  both  in  direct  antagonism  to  the 
declaration  of  independence  and  the  constitution. 

The  first  is  formed  in  the  theory  that  the  govern- 
ment, as  agreed  by  the  colonists  for  the  United  States, 
was  a substitute  for  the  English  sovereign.  Conse- 
quently, intentional  or  accidental  birth  on  an  inanimate 
piece  of  ground  in  the  United  States  created  an  im- 
mutable relation  through  it,  to  the  government,  to 
which  was  owed  an  indelible  allegiance.  This  argu- 
ment proceeds  on  the  same  fiction  from  which  the 
English  system  is  reasoned. 

Was  this  the  intent  and  purpose  of  the  compact  en- 
tered into  by  the  American  colonists  in  the  creation 
of  their  government?  By  no  means.  It  was  a gov- 
ernment created  by  men  who  were  equal  ; who  pos- 
sessed certain  inalienable  rights ; and  in  the  enjoyment 
of  these  rights  they  organized  a government  of  them- 
selves, by  themselves  and  from  themselves.  Each  and 
every  member  of  the  society  had  the  right  and 
10 


74 


THE  LAW  OF  CITIZENSHIP 


privilege  of  participating  in  the  legislative  branch  of 
the  government,  and  was  subject,  with  aliens,  to  the 
executive  and  judiciary.  The  reverse  was  the  rule  in 
England. 

The  second  argument  is  found  in  opinions  of  judicial 
tribunals  when  invited  to  consider  the  question 
whether  or  not  the  theory  of  immutable  allegiance,  as 
known  to  the  English  law,  was  adopted  by  the  United 
States. 

The  decisions  announced  in  Inglis  vs.  The  Trustees 
of  the  Sailors’  Snug  Harbor ; and  Shanks  vs.  Dupont, 
in  3 Peters’  Reports,  are  summed  up  by  Chancellor 
Kent,  with  his  own  opinion,  as  follows : From  this 

historical  review  of  the  principal  decisions  in  the 
Federal  courts,  on  this  interesting  subject  of  American 
jurisprudence,  the  better  opinion  would  seem  to  be, 
that  a citizen  cannot  renounce  his  allegiance  to  the 
United  States  without  the  permission  of  government 
to  be  declared  by  law ; and  that,  as  there  is  no  exist- 
ing regulation  in  the  case,  the  rule  of  the  English 
common  law  remains  unaltered.”  2 Kent,  49 ; other 
authorities : 3 Story  on  the  Constitution,  3' ; Law- 
rence’s Wheaton,  995  (Ed.  1863). 

It  would  seem  that  we  should  accept  this  as  the 
result  of  the  leading  judicial  opinions  in  the  courts. 
It  was  in  direct  conflict  with  the  opinions  of  the  other 
departments  of  the  government  and  the  naturalization 
laws  of  the  United  States.  2 Kent,  49,  note. 

The  fallacy  of  the  opinions  of  the  courts  lies  in  a 
mistaken  source  of  government,  omitting  entirely  the 
fact  that  certain  inalienable  rights  are  in  man,  which 
he  did  not  surrender  by  the  compact  which  he  made 


IN  THE  UNITED  STATES. 


75 


with  his  fellow  man,  when  he  organized  the  society  of 
the  United  States. 

The  opinions  fall  in  with  the  line  of  argument 
adduced  to  support  the  fiction  that  the  United  States 
was  a substitute  for  the  British  sovereign. 

The  opinions  rest  on  the  necessity  of  a positive 
regulation  of  law  by  which  allegiance  could  be 
absolved. 

May  it  not  be  inquired  why  was  not  a positive 
regulation  of  law  as  much  requisite  for  the  adoption 
of  the  principles  of  jus  soli  and  allegiance,  as,  accord- 
ing to  Chancellor  Kent,  it  was  requisite,  in  order  that 
a citizen  of  the  United  States  might  throw  off  his 
allegiance  ? There  is  no  positive  regulation  in  the 
original  compact,  constitution  or  statutes,  adopting 
these  principles  as  known  to  the  English  law.  The 
English  common  law  is  not  to  be  taken  in  all  respects 
to  be  that  of  America.  Our  ancestors  brought  with 
them  and  claimed  as  their  birth  right,  its  general 
principles  and  adopted  that  portion  of  it  only  which 
was  applicable  to  their  situation.” 

Dictum  in  8 Peters’  Deports,  658  : “ It  is  clear 

there  can  be  no  common  law  of  the  United  States. 
When,  therefore,  a common  law  right  is  asserted,  we 
must  look  to  the  state  in  which  the  controversy 
originated.” 

Dictum,  1 Blackford,  205  : ‘‘The  common  law  of 
England  is  not  in  the  United  States,  as  a federal 
government.” 

There  is  no  rule  of  law  in  the  United  States,  by 
which  it  is  laid  down  that  the  form,  structure  and 
organization  of  the  government  of  the  United  States 


76 


THE  LAW  OF  CITIZENSHIP 


is  to  be  interpreted  by  the  principles  of  the  common 
law  of  England.  That  portion  of  the  common  law 
which  related  to  the  form  of  government  of  England 
was  expressly  set  at  defiance  in  the  declaration  of 
independence. 

The  principles  of  the  government  were  founded  in 
pure  reason  which  was  the  immutable,  eternal  and 
universal  law  of  mankind.  On  this  same  rule  are 
founded  the  principles  of  international  law  which 
govern  the  intercourse  between  independent  societies 
and  involved  in  the  question  of  intercourse  is  that  of 
expatriation.  Our  knowledge  of  international  law  is 
not  taken  from  the  municipal  code  of  England,  but 
from  actual  reason  and  justice,  and  from  writers  of 
known  msdom,  and  they  are  all  opposed  to  the  doc- 
trine of  perpetual  allegiance.”  9 Op.  Atty-Genl.  356. 

No  better  exponent  of  this  famous  document  (the 
declaration  of  independence)  can  be  found  than  the 
man  himself  who  agitated  the  question  of  separation 
and  drafted  the  declaration.  None  could  know  better 
than  did  he,  the  spirit  and  intent  of  the  convention  by 
which  it  was  adopted.  Mr.  Thomas  Jefferson,  in  dis- 
cussing, among  other  things,  the  question  of  allegiance, 
while  admitting  the  term,  impliedly  states  : “ That  our 
citizens  are  certainly  free  to  divest  themselves  of  that 
character,  by  emigration  and  other  acts  manifesting 
their  intention  and  may  then  become  the  subjects  of 
another  power  and  be  free  to  do  whatever  the  sub- 
jects of  that  power  do.” 

Certainly  this  should  be  sufficient  to  counteract  any 
force  of  judicial  tribunals,  when  arguing  from  false 
premises. 


IN  THE  UNITED  STATES. 


77 


Herein  is  concisely  combatted  the  theory  that  a 
specific  regulation  of  law  was  essential  to  a change  of 
citizenship. 

In  article  7 of  the  constitution,  by  which  a uniform 
law  of  naturalization  is  declared  essential,  in  lieu  of 
the  laws  of  the  different  states  then  existing,  is  evi- 
dence positive  of  right  to  acquire  citizenship  in  the 
United  States  and  implied  evidence,  that  the  same 
privilege  exists  to  dissolve  it,  on  the  principle  de- 
clared, that  all  men  are  created  equal,  and  in  recogni- 
tion of  the  natural  rights  of  man. 

It  would  be  difficult  to  reason  from  the  American 
standpoint  of  affairs,  at  the  time  of  the  adoption  of  the 
constitution  of  the  United  States,  and  prior  to  that 
date  during  the  agitation  of  the  question  of  separation, 
how  any  other  conclusion  can  be  reached.  When 
argued  from  the  English  standpoint,  as  was  done  by 
Lord  Grenville  in  1797,  the  conclusion  is  as  follows  : 
“No  British  subject  can,  by  such  form  of  renunciation 
as  that  which  is  prescribed  in  the  American  law  of 
naturalization,  divest  himself  of  his  allegiance  to  his 
sovereign.  Such  a declaration  of  renunciation  made 
by  any  of  the  king’s  subjects,  would,  instead  of  operat- 
ing as  a protection  to  them,  be  considered  an  act  en- 
tirely criminal  on  their  part.”  Lord  Grenville  was,  at 
this  time,  commenting  on  a relation  with  the  United 
States ; the  same  rule  would  be  applicable  to  other 
countries. 

Substitute,  however,  in  place  of  British  subject, 
American  citizen,  and  in  place  of  his  reference  to  the 
United  States  the  same  reference  to  all  countries,  and 
the  opinion  of  some  of  the  tribunals  of  the  United 


78 


THE  LAW  OF  CITIZENSHIP 


States  are  substantially  in  confirmation  of  Lord  Gren- 
ville’s dictum. 

Chief  Justice  Marshall,  in  Murray  vs.  Schooner 
Charming  Betsy,  2 Cranch,  decided  as  follows  : The 
American  citizen  who  goes  into  a foreign  country,  al- 
though he  owes  but  a temporary  and  local  allegiance 
to  that  country,  is  yet,  if  he  performs  no  other  act 
changing  his  condition,  entitled  to  the  protection  of 
his  own  government ; but  his  situation  is  completely 
changed  when  by  his  own  act  he  has  made  himself 
subject  to  a foreign  power.” 

Thus  it  appears  that  the  authorities  were  in  conflict 
not  alone  in  the  highest  tribunal  of  the  land,  but  also 
in  the  lower  state  courts,  which  a review  of  their  de- 
cisions would  show. 

This  rule  was  laid  down  at  an  early  date  in  the  state 
of  Massachusetts,  as  follows : “ This  claim  of  the  com- 
monwealth to  the  allegiance  of  all  persons  born  within 
its  territory  may  subject  some  persons,  who,  adhering 
to  their  former  sovereign,  and  residing  within  his  do- 
minions, are  recognized  by  him  as  his  subjects,  to  great 
inconvenience,  especially  in  time  of  war,  when  the  op- 
posing sovereigns  claim  their  allegiance.  But  the  incon- 
venience cannot  alter  the  law  of  the  land.  Their  situa- 
tion is  not  different  in  law,  whatever  may  be  their  equi- 
table claims,  from  the  situation  of  these  citizens  of  the 
commonwealth  who  may  be  naturalized  in  the  domin- 
ion of  a foreign  prince.  The  duties  of  these  persons 
arising  from  their  allegiance  to  the  country  of  their  birth, 
remain  unchanged  and  unimpaired  by  their  foreign 
naturalization.  For  by  the  common  law  no  subject  can 
expatriate  himself.”  Ainslie  vs.  Martin,  6 Mass.  Bpts. 


IN  THE  UNITED  STATES. 


79 


The  contrary  was  submitted  at  the  same  time  in 
Virginia.  “ It  is  believed  that  the  right  of  emigration 
or  expatriation  is  one  of  those  inherent  rights,  of  which, 
when  men  enter  into  a state  of  society,  they  cannot  by 
any  campact  deprive  or  divest  their  posterity.  But 
although  municipal  laws  cannot  take  away  or  destroy 
this  right  they  may  regulate  the  manner  and  prescribe 
the  evidence  of  its  exercise,  and  in  the  absence  of  the 
regulations  juris  positivi,  the  right  must  be  exercised 
according  to  the  principles  of  law.”  Murray  vs.  Mc- 
Carthy, 2 Mumford’s  Bepts. 

By  what  processes  of  reasoning  these  two  opinions 
so  diametrically  opposed  were  reached  is  to  be  ex- 
plained by  this  : that  in  the  first,  the  common  law  was 
believed  to  be  the  guide  to  the  declaration  of  inde- 
pendence and  the  constitution  of  the  United  States, 
while  in  the  second  the  reason  is  from  the  principles 
as  laid  down  by  the  founders  of  the  government  and 
based  on  the  natural  laws  of  man. 

In  the  first,  it  is  denied  that  the  government  of  the 
United  States  is  conventional  as  between  man  and  man. 
In  the  second,  it  is  admitted  that  the  government  has 
no  other  existence  than  in  compact  entered  into,  by 
and  between  those  who  organized  it.  Yet  with  this 
diversity  of  opinion,  it  was  still,  in  1836,  an  open 
question  with  our  judiciary.  Under  the  rules  then  pre- 
vailing the  right  to  depart  was  both  acknowledged 
and  denied.  The  first  recognized  the  English  common 
law  as  the  guide  to  the  American  form  of  government, 
while  the  second  recognized  the  government  to  be 
founded  on  the  natural  law  of  man.  The  latter  is  the 
only  and  correct  view.  It  is  based  on  the  compact  in 


80 


THE  LAW  OF  CITIZENSHIP 


which  the  government  had  its  origin.  The  application 
of  the  principles  of  the  English  common  law  was 
fallacious. 

WERE  THE  PRINCIPLES  OF  JUS  SOLI  AND  ALLEOIANCE 
ADOPTED  IN  THE  UNITED  STATES  PRIOR  TO  1836  OTHER 
THAN  IN  NAME  ? 

It  is  proper,  first,  to  inquire  if  adopted  to  whom 
were  they  applicable  ? The  founders  of  the  govern- 
ment became  citizens  by  recognition  under  the  treaties 
of  1783  and  1794.  At  this  time  citizenship  in  the 
United  States  was  not  acquired  in  any  other  manner. 
Those  born  in  the  colonies  were  English  subjects  by 
birth.  The  fact  of  birth  in  the  colonies  did  not  in  any- 
wise affect  their  right  to  recognition  and  to  option  under 
the  treaties  of  1783  and  1794.  Those  who  were  born  in 
England  proper  stood  equal  with  those  born  in  the 
colonies.  It  was  no  advantage  nor  was  it  a disad- 
vantage to  have  been  born  within  or  without  the 
United  States  so  far  as  the  effect  of  the  treaties  was 
concerned.  All  who  wished  to  become  citizens  exer- 
cised the  right  of  choice  or  option  and  became  citizens 
of  the  United  States,  or  remained  English  subjects  as 
they  wished. 

To  these  who  optated  to  become  citizens  were  born 
children ; these  children  were  born  within  and  with- 
out the  limits  of  the  United  States.  First.  As  to 
those  who  were  born  within  the  United  States. 

There  was  no  positive  regulation,  by  which  it  was 
specifically  declared  in  what  manner  or  for  what  reason 
they  acquired  citizenship.  There  was  no  positive  reg- 
ulation by  which  the  principles  of  the  declaration  of 
independence  and  the  constitution  should  be  inter- 


IN  THE  UNITED  STATES. 


81 


preted,  other  than  by  the  spirit  which  these  compacts 
carried  within  themselves. 

There  was  no  positive  regulation  that  these  com- 
pacts should  be  interpreted  by  the  rule  of  the  English 
common  law.  Only  as  much  of  this  law  was  adopted 
as  was  applicable  to  the  situation  of  the  founders  of 
the  government,  in  their  civic  relations  and  principles 
which  governed  crimes.  These  compacts  carry  within 
themselves  a sufficient  refutation  of  the  common  law 
rules,  so  far  as  they  pertain  to  the  structure  and  form 
of  government  in  England.  Among  these  primarily 
were  the  principles  of  jus  soli  and  allegiance. 

Neither  Jus  soli  nor  allegiance  are  mentioned  in 
name  in  these  original  compacts  so  as  to  convey  at  all 
the  idea  and  meaning  which  was  given  to  them  in 
England.  They  are  taken  up  in  name  by  the  different 
departments  of  government  — by  the  publicists  and  by 
the  Judicial  tribunals. 

In  the  foregoing  they  were  in  dispute  as  to  their  ac- 
ceptation and  the  reasons  are  given.  The  conclusion 
reached  was,  that  they  were  not  adopted ; they  were 
incompatible  with  the  structure  of  government,  as 
agreed  to  by  the  colonists. 

The  argument  must  proceed  upon  the  theory  which 
was  and  became  the  practice,  that  those  who  Joined 
the  compact,  might  on  general  principles  and  by  the 
laws  of  nature,  dissolve  connection  with  it.  The  right 
was  implied  if  not  expressed.  Nor  was  it  expressed, 
in  the  compact  of  government,  by  what  means  or  in 
what  manner  the  children  of  those  who  were  citizens 
should  become  citizens. 

If  the  structural  principles  of  the  English  govern- 
11 


82 


THE  LAW  OF  CITIZENSHIP 


ment  were  not  adopted ; if  no  positive  regulation  pre- 
vailed in  the  United  States  by  which  the  children  of 
citizens  of  the  United  States  became  citizens,  it  is  per- 
tinent to  inquire,  how  was  a citizenship  acquired  by 
them  ? 

According  to  the  theory  of  Chancellor  Kent  a posi- 
tive regulation  was  required  by  which  citizenship  in 
the  United  States  could  be  acquired.  No  doubt,  by 
this  line  of  reasoning,  a positive  regulation  would  be 
requisite,  in  the  acquisition  of  citizenship  by  children 
of  citizens  of  the  United  States  born  within  the  limits 
of  the  United  States.  Disregarding  the  structural 
principles  of  the  government  of  the  United  States  and 
the  inherent  rights  of  man,  he  formed  a rule  among 
the  structural  principles  of  the  English  government  as 
declared  in  the  feudal  relations  through  the  jus  soli 
and  allegiance. 

According  to  the  opposing  theory,  which  denies  the 
structural  principles  of  the  English  government  and 
acknowledges  none  but  those  of  the  United  States, 
on  matters  pertaining  to  the  form  of  government,  the 
rule  must  be  implied  in  want  of  a positive  rule  ex- 
pressed. 

It  has  been  already  adverted  to,  that  the  parties  to 
the  original  compact,  by  which  the  government  of  the 
United  States  was  formed,  were  citizens  not  by  birth 
under  the  principles  either  of  jus  soli  or  allegiance^ 
but  by  choice  and  by  the  treaties.  This  was  the  ex- 
ercise of  a right,  primary  in  men,  which  had  already 
been  exercised  in  1776  by  the  colonists  prior  to  the 
recognition  of  the  right,  in  another  form,  by  the  treaty 
of  1783.  Under  either  act,  the  one  of  1776,  1783  or 


IN  THE  UNITED  STATES. 


83 


1795  the  effect  was  the  same  and  was  the  result  of 
the  exercise  of  a right  natural  in  man. 

It  has  already  been  mentioned  that  no  positive  regu- 
lation prevailed,  by  which  children  of  citizens  of  the 
United  States  born  in  the  United  States  became  citi- 
zens; that  the  structural  principles  of  the  English 
government  were  not  adopted  in  the  United  States, 
either  by  express  words  or  by  implication ; that  the 
natural  rights  of  man  are  recognized  in  the  compact 
of  government  as  agreed  upi)n  for  the  United  States 
and  disavowed  by  the  feudal  principles,  on  which  is 
constructed  the  English  government. 

Correlative  to  the  rights  inherent  in  man  are  the 
duties  of  man.  Primary  among  these  duties  growing 
out  of  the  relation  of  parent  to  child,  is  the  one  of  sup- 
port which  custom  and  law  throughout  the  civilized 
world  has  enjoined  on  the  parent. 

Correlative  with  the  duty  of  the  parent  to  support 
the  child  is  the  claim  of  the  child  on  the  parent  for 
support. 

These  have  been  positive  rules  of  society.  They 
are  the  rules  of  nature  transposed  into  laws  for  the 
regulation  of  these  relations  in  society.  These  laws 
were  natural  to  the  founders  of  the  government  of  the 
United  States.  They  brought  them  in  positive  form 
from  England  and  nourished  them  as  colonists.  They 
were  portions  of  the  common  law  of  England  as  well 
as  of  the  natural  law  of  man,  and  were  adopted  for 
the  society  of  the  United  States. 

According  to  the  law  of  nature,  no  place  is  cir- 
cumscribed within  which  the  parent  shall  support  the 
child.  Wherever  the  parent  goes  the  child  follows. 


84 


THE  LAW  OF  CITIZENSHIP 


Nor  is  the  place  circumscribed  by  the  declaration  of 
independence  or  the  constitution  of  the  United  States. 
Nor  is  it  by  the  law  of  any  civilized  community.  The 
right  of  locomotion  is  not  restrained  by  civilized 
governments. 

Out  of  this  relation  of  parent  to  child  and  child  to 
parent,  grow  love  and  affection,  aside  from  duty  of 
support  which  devolves  on  the  parent  toward  the 
child.  By  the  positive  law  of  all  societies,  a certain 
age  is  fixed  and  determined  at  which  membership  is 
permissible  and  at  which  the  exercise  of  full  rights 
of  citizenship  is  allowed. 

While  the  child  is  under  this  prescribed  age,  which 
varies  in  different  societies,  he  is  of  the  same  citizenship 
as  is  the  father,  by  virtue  of  the  father’s  citizenship. 

The  relation  between  parent  and  child  is  complex ; 
their  rights,  the  one  to  the  other,  are  inseparable ; 
they  are  so  considered  by  the  positive  law  and  by 
custom.  Their  inseparable  nature  renders  the  rule 
necessary,  that  the  child  follows  the  citizenship  of  the 
parent,  until  he  reaches  the  age  at  which  he  may  elect 
to  remain  of  the  same  citizenship  as  the  parent  or 
abandon  the  parent’s  citizenship.  This  is  the  rule 
which  naturally  and  of  necessity  governed  in  the 
United  States  prior  to  1836,  and  by  which  those  chil- 
dren of  citizens  of  the  United  States  became  citizens. 

When  they  arrived  at  the  age  prescribed,  at  which 
they  could  enjoy  full  citizenship,  they  acquired  full 
citizenship,  by  taking  part  in  the  right  of  being  repre- 
sented and  of  representation  in  the  legislative  branch 
of  government,  expressly  or  impliedly. 

In  the  United  States,  this  privilege  of  election  is 


IN  THE  UNITED  STATES. 


85 


more  marked  tkan  in  most  other  countries.  When  the 
child  fails  to  elect,  the  presumption  is  immediately 
raised,  that  he  has  so  done,  in  want  of  expression  by 
him  to  the  contrary,  by  seeking  citizenship  in  some 
other  country.  It  cannot  be  denied,  however,  in  this 
connection  that  the  term  native* born  ” was  and  is  in 
use ; its  application  was  not  and  is  not  with  the  same 
reason  therefore,  as  is  found  in  the  English  common 
law.  Its  use  was  and  is,  purely  in  imitation  as  a term, 
of  the  same  term,  in  the  English  law.  Strictly  inter- 
preted its  meaning  was  and  is,  partus  sequuntur  patrem, 
i.  e.,  the  child  follows  the  citizenship  of  the  parent. 

The  rule  was  well  laid  down  by  Vattel,  sections  216- 
220 : “ By  the  law  of  nature  alone  children  follow  the 
condition  of  their  fathers  and  enter  into  all  their 
rights.  The  place  of  birth  produces  no  change  in  this 
particular ; for  it  is  not  naturally  the  place  of  birth 
that  gives  rights  but  extraction.” 

Secondly,  as  to  those  children  born  of  citizens  of  the 
United  States,  without  the  limits  of  the  United  States. 

There  was  no  prohibition  on  citizens  of  the  United 
States  sojourning  in  foreign  countries.  If  while  abroad 
children  were  born  to  them,  such  children  followed 
the  citizenship  of  the  parent.  This  rule  is  the  pri- 
mary, positive  regulation  on  this  branch  of  this  subject. 

By  the  act  1802,  “ All  children  heretofore  born  or 
hereafter  born  out  of  the  limits  and  jurisdiction  of  the 
United  States,  whose  fathers  were  or  may  be  at  the 
time  of  their  birth,  citizens  thereof,  are  declared  to  be 
citizens  of  the  United  States,  but  the  rights  of  citizen, 
ship  shall  not  descend  fo  children  whose  fathers  never 
resided  in  the  United  States.” 


86 


THE  LAW  OF  CITIZENSHIP 


This  rule  is  similar  to  the  English  rule  of  7 Anne, 
chapter  5,  section  8.  The  success  in  the  enforcement 
of  this  rule  by  England  has  already  been  referred  to, 
and  from  that  practice  the  conclusion  would  be  that 
English  children  born  abroad  of  English  subjects  may 
have  the  rights  of  Englishmen  when  within  Great 
Britain,  but  when  abroad  in  the  country  of  their  birth 
they  failed  to  receive  that  protection,  which  an  Eng- 
lish subject  born  of  English  parents  in  Great  Britain 
would  receive. 

It  is  reasonable  to  infer  that  the  practice  of  the 
United  States  under  this  same  rule  was  not  any  more 
successful. 

For  example,  what  would  be  the  citizenship  under 
the  English  rule,  of  a child  of  citizens  of  the  United 
States  born  in  England  ? While  that  child  would  be 
held  as  an  English  subject  in  England  under  the 
English  law,  in  the  United  States,  he  would  be  held 
to  be  a citizen  of  the  United  States.  Thus,  in  both 
countries  he  would  be  subject  to  duties  as  a citizen  of 
each,  when,  respectively,  in  the  one  or  the  other. 
The  rule,  as  applied  in  the  United  States  under  the 
act  of  1802,  was  structural  as  to  the  form  of  govern- 
ment in  the  United  States.  It  was  expressive  of  the 
governing  principles  as  to  citizenship  that  the  child 
followed  the  citizenship  of  the  parent.  To  declare 
that  the  child  born  in  the  United  States,  of  citizens  of 
the  United  States,  was  other  than  a citizen  by 
descent,  and  became  a citizen  because  of  the  citizen- 
ship of  the  parent,  would  be  to  contradict  the  rule 
which  was  laid  down  for  children  of  citizens  of  the 
United  States  born  in  foreign  countries. 


IN  THE  UNITED  STATES. 


87 


To  follow  the  English  common  law  rule  would  be  to 
contradict  the  act  of  1802,  in  spirit  and  intent.  The 
English  common  law  rule  was  not  adopted. 

Eeverse  the  rule,  and  what  was  the  citizenship  of 
the  children  of  aliens  born  in  the  United  States? 
There  is  no  positive  rule,  by  which,  at  this  time,  they 
were  declared  to  be  citizens  of  the  United  States. 
While  it  could  properly  be  held  that  they  owed 
a temporary  and  local  allegiance  to  the  government  of 
the  United  States,  as  it  was  held  that  their  parents 
did  owe  it,  in  Carlisle  vs.  United  States,  16  Wallace, 
148  ; yet  upon  return  to  the  country  of  their  parents, 
in  which  either  the  rule  as  found,  7 Anne,  chapter  5, 
section  3 ; or  the  rule  that  children  followed  the 
citizenship  of  the  parent  until  majority  prevailed,  they 
would  in  either  case  be  held  to  be  citizens  of  the 
country  of  their  parents’  citizenship. 

The  principle  would  fall  short  of  the  definition  of 
citizenship.  One  cannot  enjoy  the  citizenship  of  one 
country  when  in  that  country,  and  the  citizenship  of 
another  country  when  in  that  country. 

The  rule,  as  laid  down  by  the  act  of  1802,  did  not 
carry  with  it  the  principle  of  allegiance  as  did  the 
rule  in  7 Anne,  chapter  5,  section  3.  This  principle 
carried  within  it  a perpetual  personal  relation  to  the 
English  sovereign,  which  by  analogy  could  not  have 
been  intended  in  the  relation  of  a citizen  of  the 
United  States  to  his  government.  Were  it  so  consid- 
ered, it  would  argue  in  favor  of  the  theory  that  the 
government  of  the  United  States  was  a substitute  for 
the  English  sovereign.  There  was  no  such  relation 
purposed,  nor  is  any  thing  contained  in  the  principles  of  - 


88 


THE  LAW  OF  CITIZENSHIP 


the  government  of  the  United  States  that  such  a sub- 
stitution should  be  made.  If  by  simple  phraseology 
the  term  “allegiance”  is  used  in  the  jurisprudence  of 
the  United  States,  it  is  not  with  the  import  as  used  in 
the  jurisprudence  of  Great  Britain.  For  in  England 
this  allegiance  was  indissoluble  and  perpetual,  which 
rule  had  not  maintained  in  the  United  States. 

Alexander  McLeod  defined  the  position  of  the 
United  States  on  allegiance  in  1815  to  be  : “There  is 
no  obligation  from  the  social  compact  upon  man  to 
continue  in  allegiance  to  the  government  under  which 
he  was  born.”  Again,  Mr.  Caleb  Cushing  in  8 Op.  Atty- 
Genls.  139:  “The  doctrine  of  absolute  and  perpet- 
ual allegiance  is  inadmissible  in  the  United  States. 
It  was  a matter  involved  in  and  settled  by  us  by 
the  revolution,  which  founded  the  American  union.” 

WHO  WERE  CITIZENS  OF  THE  UNITED  STATES  IN  1836  ? 

The  citizens  of  the  United  States,  at  this  period, 
were  the  children  of  such  former  English  subjects 
as  had  optated  to  become  citizens,  and  such  foreigners 
as  had  become  legally  naturalized.  This  latter  class 
will  be  considered  when  the  questions  of  expatriation 
and  naturalization  are  discussed.  It  is  the  purpose  at 
the  present  time  to  discuss  only  the  former  class,  those 
who  bad  become  citizens  under  the  rule,  partus 
sequuntur  patrem. 

The  first  generation  descended  from  the  founders  of 
the  government  and  born  in  the  United  States  were 
now  in  full  age,  enjoying  full  rights  and  privileges  of 
citizenship,  as  the  children  of  parents  who  were  citizens 
by  choice  under  the  treaty  of  1783.  The  second 


IN  THE  UNITED  STATES. 


89 


generation  were  born,  and  by  virtue  of  birth  of  citizens 
of  the  United  States,  were  following  the  citizenship 
of  their  parents  under  the  rule  of  extraction. 

When  the  first  generation  became  of  age  each  per- 
son so  descended  of  a citizen  of  the  United  States,  ex- 
pressly or  impliedly,  himself  became  a citizen  of  the 
United  States,  or  emigrated  and  became  a citizen  else- 
where. 

The  terms  expressly  ” or  ‘‘  impliedly  ” are  here 
used  as  demonstrative  of  the  peculiarity  which  attends 
a government  founded  on  compact  as  was  the  govern- 
ment of  the  United  States.  The  alternative  is  open 
to  the  child  of  a citizen  of  the  United  States.  He 
either  remains  or  departs  ; he  may  remain  and  depart 
later  in  life.  This  is  always  a matter  of  choice  with 
him.  Here  we  have  to  do  with  him  upon  reaching  his 
majority  and  the  same  rule  applies,  regardless  of  the 
manner  in  which  the  parent  became  a citizen,  provided 
he  acquired  his  citizenship  legally  under  the  statutes  of 
the  United  States. 

Upon  reaching  majority,  if  the  child  desires  to  ex- 
ercise full  rights  of  citizenship,  he  proceeds  to  partake 
of  the  representation  privileges,  which  is  done  pursuant 
to  prescribed  regulations  pertaining  to  suffrage. 

Hereby,  he  becomes,  by  subscribing  to  the  principles 
of  government,  expressly,  as  proclaimed  by  its  founders, 
a contracting  party  to  the  original  compact,  by  which 
the  government  was  organized.  It  is  in  this  manner 
that  the  contract  is  constantly  in  process  of  renewal  as 
between  the  citizens  of  the  United  States. 

If  it  does  not  partake  of  the  representation  privileges, 
by  seeking  the  rights  of  suffrage  in  the  absence  of  with- 
12 


90 


THE  LAW  OF  CITIZENSHIP 


drawal,  he  subscribes  impliedly  to  the  principles  of 
government  and  becomes  a contracting  party,  equally 
as  well  as  if  he  did  so  expressly  pursuant  to  the  same 
principle. 

As  before  stated,  the  first  generation  was  at  this 
time,  in  the  enjoyment  of  the  rights  and  privileges  of 
citizens,  as  declared  in  the  principles  of  government 
set  forth  in  the  original  compact  on  which  the  gov- 
ernment was  founded.  It  had  renewed  and  re-affirmed 
the  principles  of  the  government  and  by  expressed  or 
implied  acts  demonstrated  the  necessity  of  a recogni- 
tion of  the  natural  rights  of  man  and  that  government 
was  in  man,  of  man  and  by  man. 

The  rule  is  laid  down  in  Shanks  vs.  Dupont,  3 
Peters,  242  : Children  born  in  a country,  continuing 
while  under  age  in  family  of  father  partake  of  his 
character  as  a citizen  of  that  country.”  The  govern- 
ing principle  is  that  the  government  is  founded  on  con- 
tract. During  minority  a child  of  a citizen  of  the 
United  States  wheresoever  born  cannot  become  a con- 
tracting  party.  He  can  do  this  only  when  he  reaches 
majority.  He  than  elects  by  implication  or  expressly 
to  become  a citizen  of  the  United  States  by  joining 
with  citizens  of  the  United  States  in  the  exercise  of 
rights  of  citizenship.  This  he  does  by  virtue  of  his 
father’s  rights  as  a citizen.  Or  he  may  depart  and 
seek  allegiance  in  another  state.  Upon  reaching  ma- 
jority, he  does  or  does  not  renew  the  original  contract 
of  government  as  made  by  the  founders  of  the  gov- 
ernment. He  does  or  does  not  become  a party 
thereto. 


IN  THE  UNITED  STATES. 


91 


THE  RIGHT  OF  OPTION  FURTHER  RECOGNIZED  BY  THE 
UNITED  STATES. 

By  tlie  treaty  of  1803  witli  France,  by  whidi  the 
colony  of  Louisiana  was  ceded  to  the  United  States, 
it  was  distinctly  understood  that  the  right  of  option 
prevailed,  to  depart  or  remain  as  French  citizens  or  to 
choose  to  become  citizens  of  the  United  States. 

The  same  rule  was  recognized  in  1819  in  the  treaty 
with  Spain,  by  which  East  and  West  Florida  w’ere 
ceded  to  the  United  States. 

By  these  cessions  these  foreign  powers  surrendered 
their  claims  to  territory  which  now  forms  a great  part 
of  the  United  States.  A Christian  duty  devolved  on 
these  countries  not  to  leave  their  subjects  defenseless, 
and  the  following  was  contained  in  each  treaty : 

“ The  inhabitants  of  the  territories  ceded  shall  be 
incorporated  in  the  union  of  the  United  States  as  soon 
as  may  be  consistent  with  the  principles  of  the  federal 
constitution,  and  admitted  to  the  enjoyment  of  all  the 
privileges,  rights  and  immunities  of  citizens  of  the 
United  States.” 

DID  CITIZENSHIP  BY  DESCENT  AND  NOT  BY  BIRTH  UNDER 

THE  ENGLISH  RULE,  CONTINUE  TO  BE  THE  RULE  IN  THE 

UNITED  STATES  TO  1868  ? 

During  the  period  from  1836  to  1861  the  question 
was  less  discussed  than  it  had  been  prior  to  that  date. 

The  supreme  court  of  the  United  States  refrained 
from  expressing  and  defining  its  position  on  the  sub- 
ject. The  courts  of  several  states  expressed  opinions. 

The  court  of  appeals  of  Kentucky  in  1839  upheld 
the  implied  right,  as  existing  in  the  parties  contracting. 


92 


THE  LAW  OF  CITIZENSHIP 


to  withdraw  from  the  United  States,  that  the  right 
was  fundamental  and  could  be  exercised  at  the  option 
of  its  citizens. 

This  opinion  was  grounded  on  the  constitution  of 
1792,  That  emigration  from  the  state  shall  not  be 
prohibited.” 

This  declaration  is  from  the  Virginia  constitution, 
in  which  the  right  is  recognized.  The  contrary  view 
was  held  by  the  supreme  court  of  Pennsylvania,  not- 
withstanding the  constitution  of  that  state  as  adopted 
in  1776  : That  all  men  have  a natural,  inherent  right 
to  emigrate  from  one  state  to  another  that  will  receive 
them.” 

In  other  states  opinions  were  expressed,  but  in 
nearly  every  case  the  reason  proceeded  either  upon  the 
local  declaration  of  rights  or  the  local  constitution,  and 
were  only  of  special  force  in  the  state,  in  deciding  a 
local  issue. 

The  publicists  of  the  United  States  discussed  the 
question  from  the  standpoint  of  international  law  as 
recognized  by  and  between  different  countries. 

Mr.  Marcy  wrote  to  Mr.  Halseman  in  1852 : “ There 
is  great  diversity  and  much  confusion  of  opinion  as  to 
the  nature  and  obligations  of  allegiance.  The  sounder 
and  more  prevalent  doctrine,  however,  is  that  a citizen 
or  a subject  having  faithfully  performed  the  past  and 
present  duties,  resulting  from  his  relation  to  his  sover- 
eign power,  may  at  any  time  release  himself  from  the 
obligation  of  allegiance,  freely  quit  the  land  of  his 
birth  or  adoption,  seek  through  all  countries  a home, 
and  select  anywhere  that  which  offers  him  the  finest 
prospects  of  happiness  for  himself  and  posterity.” 


IN  THE  UNITED  STATES. 


93 


Mr.  Cass  was  of  opinion  in  1859:  ^^The  right  of 
expatriation  cannot,  at  this  day,  be  denied  or  doubted 
in  the  United  States.  The  idea  has  been  repudiated 
ever  since  the  origin  of  our  government  that  a man  is 
bound  to  remain  forever  in  the  country  of  his  birth 
and  that  he  has  no  right  to  exercise  his  free  will  and 
consult  his  own  happiness  by  selecting  a new  home. 
The  most  eminent  writers  on  public  law  recognize  the 
right  of  expatriation.  This  can  only  be  contested  by 
those  who,  in  the  nineteenth  century,  are  still  devoted 
to  the  ancient  feudal  law  with  all  its  oppression.  The 
doctrine  of  perpetual  allegiance  is  a relic  of  barbarism 
which  has  been  gradually  disappearing  from  Chris- 
tendom during  the  last  century.” 

Caleb  Cushing  expressed  the  view  very  forcibly 
that  a citizen  of  the  United  States  may  exercise  the 
right  of  expatriation  — the  right  not  being  expressed, 
is  implied.  He  goes  further,  and  adds  : The  doctrine 
of  absolute  and  perpetual  allegiance  is  inadmissible  in 
the  United  States.  It  was  a matter  involved  in  and 
settled  by,  the  revolution  which  founded  the  American 
union.”  8 Op.  Atty-Genl.,  p.  140. 

Jeremiah  Black  recognizes  the  right  to  be  a natural 
right  which  every  free  man  may  exercise  and  is  incon- 
testable. 9 Op.  Atty-Genl.,  p.  356,  Santissima  Trini- 
dad, 7 Wheat.  283. 

This  treatment  of  the  question  of  the  right  of  a citi- 
zen to  depart  from  the  United  States,  and  the  rule  as 
established  by  the  different  writers,  necessarily  invol- 
ves the  correlative  relation  of  acquisition  of  citizenship. 
If  citizenship  was  acquired  by  birth  under  the  English 
rule,  these  publicists  would  not  assume  the  position 


94 


THE  LAW  OF  CITIZENSHIP 


which  they  have  done  and  which  they  have  announced 
as  the  foreign  policy  of  the  United  States. 

To  repeat  what  has  already  been  set  forth  as  the  rule 
prior  to  1836,  it  must  be  affirmed  that  neither  jus  soli 
nor  allegiance  in  the  English  sense  and  meaning  had 
any  thing  whatever  to  do  with  the  acquisition  of  citi- 
zenship in  the  United  States. 

In  England  these  rules  went  to  the  form  of  govern- 
ment. In  the  United  States  the  government  was  or- 
ganized on  principles  of  contract  as  between  men,  in 
direct  antagonism  to  the  English  form  of  government 

The  use  of  the  term  “ allegiance  ” has  no  technical 
place  in  the  jurisprudence  of  the  United  States  in  its 
feudal  meaning. 

Technically  it  should  be  said  that  the  citizen  has 
taken  an  oath  to  support  the  constitution  and  the  laws 
of  the  United  States.  This  is  done  by  every  citizen, 
either  expressly  or  impliedly,  before  he  enjoys  full 
rights  of  citizenship. 

In  taking  the  oath,  no  personal  relation  is  entered 
into  with  the  government  of  the  United  States.  It  is 
a relation  which  is  created  by  a citizen  with  his  fellow 
citizens.  By  it  he  affirms  and  agrees  to  the  continua- 
tion of  the  contract  on  which  his  government  is 
founded.  It  is  an  expression  of  truthful  intent  to 
abide  by  and  obey  the  laws  which  the  citizens  enact 
for  themselves,  from  among  themselves. 

THE  RULE  LAID  DOWN  IN  1868. 

“All  persons  born  in  the  United  States  and  not 
subject  to  any  foreign  power  are  declared  to  be  citi- 
zens of  the  United  States.” 


IN  THE  UNITED  STATES. 


95 


For  the  reasons  already  given,  the  common  law  rule, 
as  known  in  England,  was  not  adopted  by  the  United 
States,  in  its  application  to  citizens. 

The  right  of  expatriation  as  being  a natural  and  in- 
herent right  in  man,  has  been  advanced  by  the  pub- 
licists in  the  United  States  ever  since  the  inception  of 
its  government.  The  advocacy  of  this  principle  w'as 
clearly  in  contradiction  of  the  common  law  principle 
which  governed  in  England.  Had  the  common  law 
principle  as  recognized  in  England  been  adopted  in 
the  United  States,  the  right  of  expatriation  on  the  part 
of  a citizen  of  the  United  States  could  not  have  been 
advocated  by  the  publicists.  The  exercise  of  such  a 
right,  as  it  was  maintained  to  exist  in  a citizen  of  the 
United  States,  bore  within  it  a refutation  of  the  adop- 
tion of  the  English  common  law  rule. 

If  for  reason  of  locality  of  birth,  citizenship  was  ac- 
quired, as  it  was  understood  in  England,  the  right  of 
expatriation  could  not  have  existed ; and  the  fact  that 
it  was  held  to  exist,  and  was  exercised  by  citizens  of 
the  United  States,  would  seem  to  deny  the  adoption 
of  the  English  rule. 

It  has  never  been  maintained,  even  by  the  most  ar- 
dent advocates  of  the  English  rule  in  the  United 
States,  that  the  rule  was  adopted  in  the  United  States, 
only  in  part.  These  advocates  have  maintained,  if 
adopted  at  all,  that  it  was  adopted  as  a whole.  If 
adopted  as  a whole,  in  what  manner  do  they  reconcile 
the  exercise  of  the  right  of  expatriation,  on  the  part  of 
citizens  of  the  United  States,  with  the  ties  of  allegiance, 
by  which  a child  of  an  Englishman,  born  of  English 
parents  in  England,  was  bound  to  his  sovereign  ? 


96 


THE  LAW  OF  CITIZENSHIP 


If  a child  born  of  citizens  of  the  United  States,  in 
the  United  States,  bore  to  the  United  States  the 
same  relation  which  a child  of  English  parents,  born  in 
England,  bore  to  England’s  sovereign,  then  how  was 
the  right  of  a citizen  of  the  United  States  to  expatri- 
ate himself  to  be  reconciled  ? This  contradiction  in 
the  practice,  as  exercised  by  citizens  of  the  United 
States,  refuted  the  application  of  the  rule  as  known  in 
England,  in  the  United  States. 

For  a publicist  in  the  United  States  to  have  upheld 
the  English  rule  as  a whole,  would  have  been  to  deny 
the  fundamental  principles  of  his  government.  It 
must  be  conceded  that  the  right  of  expatriation  did 
exist  in  the  United  States,  and  has  been  exercised  by 
citizens  of  the  United  States  since  the  foundation  of 
the  government.  It  must  be  admitted  that  the  prin- 
ciples involving  the  right  of  expatriation  were  incom- 
patible with  the  English  rule. 

It  would  be  difficult  to  reconcile  this  incompati- 
bility. The  practice  admits  its  existence,  which  the 
English  practice  does  not  admit.  By  the  English 
practice  it  has  been  shown  that  while  the  right  to 
depart  and  absolve  allegiance  from  the  English  crown 
did  not  exist  in  law,  yet  in  many  cases,  where  English- 
men were  temporarily  or  permanently  residing  abroad, 
they  did  owe  a temporary  and  local  allegiance  to  the 
government  under  which  they  were  living ; more  than 
this,  in  many  cases  they  were  called  upon  and  did 
perform  similar  duties  to  the  government  under  which 
they  were  living  as  did  the  citizens  of  that  -govern- 
ment perform  when  called  upon  by  their  government 
so  to  do.  And  the  English  government  did  not  deny 


IN  THE  UNITED  STATES. 


97 


but  that  they  should  perform  such  services,  and  in 
every  respect  be  treated  as  citizens  of  that  country ; 
yet  upon  return  to  England  they  were  held  to  have 
lost  none  of  their  rights  as  Englishmen.  The  fallacy 
of  this  practice  lies  in  the  theory  of  a dual  citizenship. 

This  duty  to  serve  the  country  in  which  English- 
men sojourned  abroad,  was  no  greater  than  if  they  had 
renounced  their  English  citizenship  and  become  cit- 
izens of  that  country.  In  effect  it  was  the  same  as  if 
they  had  expatriated  themselves. 

It  is  not  found  that  the  United  States  sanctioned 
this  practice.  It  allowed  its  citizens  to  expatriate 
themselves  and  become  citizens  of  another  country. 
It  did  not  recognize  the  principle  of  dual  citizenship 
as  was  done  by  England. 

In  order  to  understand  the  rule  laid  down  in  1868, 
kindred  legislation  should  be  considered  in  connection 
with  it.  Any  ambiguity  should  be  avoided,  and 
while  the  rule  laid  down  in  United  States  vs.  Fisher,  2 
Cranch,  258,  which  holds  that  in  case  of  ambiguity, 
every  part  of  the  act  is  to  be  considered,  and  the 
intent  is  to  be  gathered  from  the  whole,  we  are  at 
liberty  in  order  to  ascertain  the  spirit  of  the  legis- 
lation to  consider  other  acts  which  bear  upon  the 
same  question. 

We  must  at  the  same  time  consider  the  purpose  for 
which  the  legislation  was  passed. 

It  cannot  be  argued,  in  this  connection,  that  it  was 
the  purpose  to  pass  statutes  merely  as  municipal  rules 
which  should  have  no  extra-territorial  effect,  when  the 
statutes  relating  to  citizenship  were  passed.  It  must 
be  presumed  that  it  was  the  intent  to  conform  to  the 
13 


98 


THE  LAW  OF  CITIZENSHIP 


laws  of  nations  as  practised  in  the  civilized  world,  in 
the  relations  of  civilized  states  the  one  toward  the  other. 

For  this  reason  the  statute  of  1802  should  be  con- 
strued in  this  connection.  By  this  statute  it  was 
enacted  : ^^All  children  heretofore  born  or  hereafter 
born  out  of  the  limits  and  jurisdiction  of  the  United 
States,  whose  fathers  were  or  may  be  at  the  time  of 
their  birth,  citizens  thereof,  are  declared  to  be  citizens 
of  the  United  States.” 

Under  the  rule  laid  down  in  1802,  it  is  evident  that 
the  locality  of  birth  should  not  govern  as  to  children 
of  citizens  of  the  United  States  born  in  foreign  coun- 
tries. And  yet  it  is  nowhere  denied  but  that  such  a 
child  so  born  in  a foreign  country  could,  on  reaching 
majority  become  a citizen  of  that  country.  This  the 
English  rule  denied  and  maintained  up  to  the  year 
1870,  the  rule  : Once  an  Englishman  always  an  Eng- 
lishman.” By  this  practice  on  the  part  of  the  United 
States  the  adoption  of  the  English  common  law  rule  is 
a^ain  denied. 

O 

It  must  be  admitted,  however,  in  this  connection, 
that  persons  subject  to  a foreign  power  born  in  the 
United  States,  had  been  held  by  the  authorities  to  be 
citizens  of  the  United  States.  Two  rules  were  laid 
down  ; the  one  in  1859  in  9 Oj).  Atty.-Genls.  373  : “A 
free  white  person  born  in  this  country  of  foreign  pa- 
rents is  a citizen  of  the  United  States.”  The  other, 
laid  down  in  1862  in  10  Op.  Atty.-Genls.  328:  “A 
child  born  in  the  United  States  of  alien  parents  who 
have  never  been  naturalized  is,  by  the  fact  of  birth,  a 
native  born  citizen  of  the  United  States,  and  entitled 
to  all  the  rights  and  privileges  of  citizenship.” 


IN  THE  UNITED  STATES 


99 


These  rules  were  applicable  to  the  territory  of  the 
United  States,  and  had  no  ex- territorial  effect.  It  is 
admitted  by  the  rules  that  the  parents  were  aliens,  and 
as  such  were  citizens  of  another  country.  Suppose 
that  the  country  of  which  the  alien  parents  were  citi- 
zens had  the  same  rule  in  its  jurisprudence  as  is  laid 
down  to  be  the  rule  by  the  United  States  in  the  act 
of  1802.  Or,  reverse  these  two  rules  and  admit  that 
these  rules  governed  in  the  country  of  which  these 
alien  parents  were  citizens  ; and  apply  them  to  children 
of  citizens  of  the  United  States  born  in  that  country. 
Does  this  not  show  a contradiction  in  principle  which 
is  untenable  in  the  Jurisprudence  of  the  United  States  ? 

Not  this  alone.  These  rules  are  for  municipal  guid- 
ance in  derogation  of  the  principles  of  international 
law.  It  is  not  simply  the  rights  and  privileges  of  citi- 
zenship in  the  United  States  whir  h govern  ; to  it  there 
is  to  be  added  a further  element  in  order  to  constitute 
perfect  citizenship  and  that  is,  equal  protection  abroad. 
Under  these  rules  the  United  States  have  simply  de- 
cided that  the  children  of  aliens  born  in  the  United 
States  can  enjoy  rights  and  privileges  within  the 
United  States.  The  United  States  could  not  contend 
that  these  rules  clothe  such  children  with  the  rights  of 
protection  as  citizens  of  the  United  States  upon  return 
with  their  alien  parents  to  the  country  of  which  they 
were  citizens.  Apply  these  rules  to  a child  born  of 
English  parents;  would  the  United  States  extend 
to  such  children,  protection  as  citizens  of  the  United 
States  upon  return  of  those  children  with  their  alien 
English  parents  to  England,  where  the  rule  Once  an 
Englishman  always  an  Englishman  ” governs  and 


100 


THE  LAW  OF  CITIZENSHIP 


where  the  principle  of  allegiance  to  the  sovereign  is 
held  to  be  indelible  and  indissoluble  ? 

The  fallacy  of  these  rules  in  their  application  within 
the  spirit  of  international  law,  is  demonstrated  by  the 
act  of  1868.  By  that  act,  the  United  States  does  not 
lay  claim  to  the  children  of  aliens,  subjects  of  a foreign 
power.  By  this  portion  of  the  act,  relating  to  children  of 
aliens  subjects  of  a foreign  power,  and  born  in  the  United 
States,  and  by  the  act  of  1802,  the  principle  of  citizen- 
ship for  reason  of  locality  of  birth  is  distinctly  denied. 

There  still  remains  the  other  portion  of  the  act : All 
persons  born  in  the  United  States  are  declared  to  be 
citizens  of  the  United  States.” 

With  the  exception  of  the  fourteenth  amendment 
to  the  constitution,  which  was  held  to  be  one  of  a ser- 
ies of  provisions  having  a common  purpose,  namely  : 
to  secure  to  the  negroes  all  the  civil  rights  that  the  su- 
perior race  enjoys,  as  decided  in  Strander  vs.  West 
Virginia,  100  U.  S.  303 ; and  Neal  v.  Delaware,  103 
U.  S.  370  ; there  are  no  other  acts  than  the  one  of  1802 
and  the  one  of  1868,  which  refer  to  the  acquisition  of 
citizenship),  whether  for  reason  of  locality  of  birth  or 
for  reason  of  descent  or  extraction. 

We  are,  therefore,  confined  to  these  acts,  which  must 
be  construed  as  a whole.  They  must  be  construed 
with  a view  to  the  existing  p)rincip)les  of  international 
law  on  this  question.  To  reach  the  law  of  construc- 
tion, we  must  refer  to  the  j)ractice  of  civilized  states, 
because  we  are  dealing  with  a question  which  concerns 
citizenship,  the  very  definition  of  which  necessitates  a 
consideration  of  the  rules  which  govern  citizenship  in 
the  international  practice. 


IN  THE  UNITED  STATES. 


101 


THE  RULE  OF  INTERPRETATION  TO  BE  APPLIED  TO  THE 
STATUTES. 

We  take  our  knowledge  of  international  law  not 
from  the  municipal  code  of  England,  but  from  natural 
reason  and  justice,  from  writers  of  known  wisdom, 
and  the  practice  of  civilized  nations.”  2 Op.  Atty.- 
Genls.  356. 

Thei*e  are,  therefore,  three  ways  by  which  to  reach 
the  rule  of  construction  which  must  be  applied  to  the 
acts  of  1802  and  1868,  considered  as  a whole. 

First,  from  natural  reason  and  justice.  It  is  dis- 
tinctly stated  that  we  do  not  derive  our  principles  of 
international  law  from  the  municipal  code  of  England. 
While  it  is  too  well  known  that  the  English  common 
law  rule  did  obtain  for  the  guidance  of  England 
throughout  centuries  of  time,  the  royal  commission 
appointed  by  her  majesty  in  1868  to  inquire  into  the 
question  of  allegiance,  which  commission  was  composed 
of  prominent  international  jurists,  such  as  Sir  Robert 
Phillimore,  Montague  Bernard  and  Travers  Twiss,  to- 
gether with  the  leading  jurists  and  statesmen  of  Eng- 
land, which  commission  did  find  : ^AVe  are  of  opinion 
that  the  rule  of  the  common  law  is  neither  reasonable 
nor  convenient.  It  is  at  variance  with  those  principles 
on  which  the  rights  and  duties  of  a subject  should  be 
deemed  to  rest;  it  conflicts  with  that  freedom  of  ac- 
tion which  is  now  recomized  as  most  conducive  to  the 

O 

general  good,  as  well  as  to  individual  happiness  and 
prosperity,  and  it  is  especially  inconsistent  with  the 
practice  of  a state  which  allows  to  its  subjects  abso- 
lute freedom  of  emigration.” 

This  material  change  in  the  advocacy  of  the  com- 


102 


THE  LAW  OF  CITIZENSHIP 


mon  law  rule  is  important  in  this  connection,  it  pro- 
ceeds uj^on  natural  reason  and  justice ; it  is  applicable 
to  a consideration  of  the  acts  of  1802  and  1868.  The 
happiness  and  prosperity  of  the  individual  inures  to 
the  general  good  of  mankind,  whether  the  individual 
is  at  home  or  abroad.  Any  restriction  for  reason  of 
locality  of  birth  is  an  injury  to  the  general  good  of 
mankind.  Such  freedom  of  action  is  essential  at  the 
present  stage  of  civilization,  as  will  conduce  to  the  good 
of  mankind.  Justice  demands  that  a citizen  should  enjoy 
the  right  of  expatriation.  This  was  a right  reserved 
by  man  when  he  entered  society.  This  was  a dictate 
of  natural  reason,  and,  therefore,  he  should  be  sustained 
in  the  exercise  of  the  right,  for  the  good  of  himself 
and  of  his  children,  provided  he  exercises  the  right 
consistent  with  justice  and  fair  dealing  to  others. 

Sir  Vernon  Harcourt  decided:  ‘‘That  the  rule  of 
determining  nationality  in  England  was  of  purely 
feudal  origin.”  In  the  United  States  it  has  never  been 
held  that  the  principle  of  feudalism  was  founded  in 
natural  reason  and  justice.  On  the  contrary,  the 
principles  set  forth  in  the  declaration  of  independence 
are  in  distinct  antagonism  to  the  principles  of  feudalism. 

Second,  from  writers  of  known  wisdom.  The 
publicists  have  discussed  this  question  from  the 
two  different  standpoints.  The  Euglish  writers  have 
maintained  that  the  English  common  law  rule,  which 
was  conceived  in  feudalism,  should  govern.  At  the  vari- 
ous epochs  when  these  writers  have  discussed  the  ques- 
tion, England  sought  morally,  if  not  actually,  to  govern 
the  civilized  world.  In  each  instance,  these  writers 
have  reasoned  from  Calvin’s  case  as  decided  by  Lord 


IN  THE  UNITED  STATES. 


103 


Coke.  They  have  labored  to  make  the  English  com- 
mon law,  or  properly  speaking  the  municipal  law  of 
England,  the  international  common  law  of  nations. 
With  them  these  questions  were  argued  and  decided 
in  accordance  with  the  decisions  of  the  English  tri- 
bunals, and  from  these  decisions,  they  derived  their 
knowledge  and  promulgated  to  the  world,  simply  the 
municipal  rules  which  governed  Englishmen  in  Eng- 
land. In  their  arguments  they  confine  themselves  to 
the  opinions  of  their  own  local  judges  as  the  source 
from  which  the  international  law  of  nations  should 
fiow.  They  did  not  argue  from  the  standpoint  that 
man  had  within  him  inherent  and  inalienable  rights 
which  were  a part  of  his  nature.  To  them,  reasoning 
from  this  standpoint  was  fallacious.  Was  it  not 
equally  as  fallacious  to  maintain  that  the  municipal 
law  of  England  alone  contained  the  principles  which 
should  govern  in  the  relations  between  nations  ? In 
this  connection  it  might,  with  all  respect,  be  said,  that 
the  so-called  English  publicists  were  expounders  of 
the  English  common  law. 

The  continental  writers  have,  as  a rule,  maintained  the 
principle  of  citizenship  by  descent  and  not  by  locality  of 
birth,  which  latter  was  the  English  common  law  rule. 

Vattel  directly  antagonizes  the  English  rule  when  he 
writes : The  true  bonds  which  connect  the  child 

with  the  body  politic  is  not  the  matter  of  an  inanimate 
piece  of  land  but  the  moral  relations  of  his  parentage.” 
Again  he  adds:  ^^The  place  of  birth  produces  no 
change  in  the  rule  that  children  follow  the  condition 
of  their  fathers,  for  it  is  not  naturally  the  place  of 
birth  that  gives  rights,  but  extraction.” 


104 


THE  LAW  OF  CITIZENSHIP 


Foelix  did  not  differ  from  Vattel;  lie  lays  down  the 
practice  to  be : That  the  child  is  a part  of  the 

nation  to  which  his  father  belongs,  if  the  child  is  born 
in  lawful  wedlock,  or  to  the  nation  of  its  mother,  if 
the  mother  is  not  married.” 

Von  Bar,  a German  publicist,  explains  the  general 
rule  to  be  as  follows  : To  what  nation  a person  be- 

longs is  by  the  law  of  all  nations  closely  dependent 
on  descent  ; it  is  almost  an  universal  rule  that  the 
citizenship  of  the  parent  determined  it ; that  of  the 
father,  where  the  children  are  lawful,  and  where  they 
are  bastards,  that  of  the  mother,  without  regard  to 
the  place  of  their  birth.  And  that  must  necessarily  be 
recognized  as  the  correct  canon,  since  nationality  in  its 
essence  is  dependent  on  descent.” 

Westlake  takes  the  broad  position  that : “Legiti- 
mate children,  in  whatever  region  or  place  they  may 
be  born,  are  regularly  members  of  the  state  of  which 
their  parents  form  part,  at  the  moment  of  their  birth.” 
This  rule  does  not  determine  that  locality  of  birth 
governs,  for  it  carries  within  itself  the  principle  of 
natural  right  of  a citizen  of  one  state  to  change  to 
another.  Herein  Westlake  differs  from  many  other 
English  writers  and  advocates  impliedly,  at  least,  the 
principle  of  citizenship  by  extraction  and  the  right  of 
expatriation,  both  of  which  contradict  the  English  com- 
mon law  rule  which  governed  in  England  prior  to  the 
year  1870. 

Field,  in  his  International  Code,  lays  down  the  rule 
to  be  that : “ A legitimate  child  wherever  born  is  a 

member  of  the  nation  of  which  its  father  at  the  time  of 
its  birth  was  a member.” 


IN  THE  UNITED  STATES. 


105 


Both  Heffter  and  Bluntschli,  recent  German  writers^ 
maintain  the  same  position. 

Fiore,  a recent  Italian  writer,  subscribes  to  the 
general  view  taken  by  continental  writers  and  main- 
tains the  correctness  of  the  principle. 

Furguson,  who  recently  wrote  as  a Holland  pub- 
licist, touches  the  question  in  a very  apt  manner; 
particularly  so,  for  this  discussion.  For  it  is  not 
citizenship  in  a limited  sense  as  defined  by  a municipal 
code,  with  which  we  are  dealing,  but  with  a citizen- 
ship as  recognized  by  the  principles  of  international 
common  law.  Furguson  remarks  : The  nationality 

which  constitutes  an  object  of  international  law  is  the 
political  nationality  or  political  citizenship  which  can 
be  lost  and  acquired  through  acts  of  legislation. 
Political  nationality  is  acquired,  first,  by  birth ; that 
is,  from  the  nationality  of  the  parents,  not  from  the 
mere  accidental  place  of  birth ; second,  by  law,  called 
naturalization.” 

Third : From  the  practice  of  civilized  nations.  | 

The  rule,  locality  of  birth,  governed  to  a great  ex- 
tent prior  to  the  publication  of  the  code  of  Napoleon. 
The  influence  of  this  production  was  great  throughout 
continental  Europe.  It  was  the  death  blow  to  the 
feudal  principle  which  governed  in  the  common  law, 
the  abolishment  of  which  was  speedily  effected  by 
codifications  of  the  laws  in  the  different  countries, 
based  on  the  principles  enunciated  in  the  French 
code.  The  purpose  and  intent  was  to  abrogate  the 
existing  common  law  and  in  its  place  to  put  in  force 
principles  consistent  with  man’s  nature.  Its  object 
was  to  eradicate  as  far  as  practicable  the  vestiges 
14 


106 


THE  LAW  OF  CITIZENSHIP 


of  the  feudal  system.  The  fundamental  idea  was 
to  effect  a complete  change  in  the  principles  of  juris- 
prudence in  every  respect,  in  which  it  could  be  done 
without  injury  to  already  existing  acquired  rights. 
The  proclamation  was  : The  new  law  abrogating  the 
ancient  law  being  reputed  to  be  more  useful  and 
beneficial  to  the  people  than  the  law  which  it  abro- 
gates, it  becomes  necessary  for  this  reason  to  give 
to  it  the  most  extended  effect.” 

By  the  law  of  Prance,  prior  to  the  revolution,  a 
child  born  on  French  soil,  though  born  of  foreign 
parents,  was  a Frenchman,  jure  soli;  born  of  French 
parents  abroad,  the  child  was  French  jure  sanguinis. 
‘‘The  framers  of  the  Code  Napoleon  adopted  a sounder 
principle ; excluded  the  place  of  birth  as  the  source  of 
nationality  itself.”  Cockburn  on  Nationality,  page  14. 

“The  sounder  principle,”  adopted  by  the  French 
code,  was  the  principle  that  citizenship  was  acquired 
by  descent  or  extraction.  Code  Civile,  art.  10. 

This  rule  governed  both  for  children  of  Frenchmen 
born  in  France,  and  in  foreign  countries.  The  prin- 
ciple is  carried  still  further:  “The  children  of  a 
Frenchman,  naturalized  in  a foreign  country  and  who 
are  born  in  the  same  country,  are  aliens.”  Thus  in 
each  case,  a child  born  of  French  parents  in  France ; 
a child  born  of  French  parents  in  a foreign  country; 
a child  born  of  a former  Frenchman  who  has  become 
naturalized  in  a foreign  country,  the  child  respectively 
follows  the  citizenship  of  the  father. 

In  the  empire  of  Austria,  the  claim  to  the  citizen- 
ship of  the  father,  at  the  time  of  the  birth  of  the  child, 
is  recognized  as  the  right  of  the  child. 


IN  THE  UNITED  STATES. 


107 


In  Prussia,  a child  born  of  a subject  of  the  king- 
dom, is  for  reason  of  birth  of  a Prussian  subject,  a 
citizen  of  Prussia,  whether  born  within  the  territory 
of  Prussia  or  in  a foreign  country.  The  law  is  sub- 
stantially the  same  in  most  of  the  other  German  states. 

The  rule  in  Sweden  and  Norway  is  : the  status  of 
persons  born  of  Swedish  or  Norwegian  parents  is 
derived  from  their  parentage. 

The  same  rule  prevails  in  the  republic  of  Switzer^ 
land. 

In  Denmark,  Holland  and  Portugal,  the  principle 
recognized  is,  that  the  claim  to  citizenship  is  by 
descent.  In  these  countries,  however,  for  the  benefit 
of  children  of  aliens,  born  within  their  limits,  citizen- 
ship is  conferred  upon  them  for  reason  of  birth  within 
the  country,  without  their  claiming  it,  provided,  they 
desire,  upon  attaining  their  majority,  to  w^aive  their 
rights  to  citizenship  by  descent.  This  rule,  which 
is  made  one  of  convenience  for  children  of  foreigners 
born  within  the  country,  by  which  they  may  claim 
citizenship  in  the  country  from  fact  of  locality  of  birth, 
thus  saving  any  naturalization,  recognizes  the  law  in 
foreign  countries  to  be,  that  citizenship  is  acquired  by 
descent. 

The  rule  which  governs  in  Italy  is  : that  citizenship 
is  acquired  by  descent.  There  is  a further  rule  that 
if  an  alien  has  resided  in  the  country  for  a period 
of  ten  years,  and  has  had  children  born,  the  children 
are  held  to  be  Italians  with  the  right  to  elect  to  re- 
main so  or  not  upon  attaining  their  majority.  The 
ground  for  this  claim  is  not  for  reason  of  birth  ; it  is 
on  the  presumption  that  the  ten  years’  residence  of  the 


108 


THE  LAW  OF  CITIZENSHIP 


parent  has  made  him  an  Italian  subject.  In  Belgium 
the  same  principles  govern  as  are  laid  down  in  the 
Code  Napoleon. 

In  Spain  the  rule  as  recognized  by  the  French  has 
been  made  the  Spanish  rule. 

THE  RESULT  OF  THE  APPLICATION  OP  THIS  RULE  OF  INTER^ 

PRETATION. 

An  application  of  these  rules  of  construction  as  de- 
rived from  the  sources  in  which  are  found  the  princi- 
ples of  international  law,  to  the  acts  of  1802  and  1868 
seems  to  bring  these  acts  properly  within  the  inter- 
national law  rule  as  was  purposed.  The  rule  is  to 
bring  citizenship  within  the  practice  of  nations  in  order 
thereby  to  insure  to  citizens  of  the  United  States  equal 
protection  abroad  with  all  other  aliens  sojourning  in  a 
common  country.  The  intercourse  between  states,  the 
closer  relations  in  commerce  and  trade,  which  necessi- 
tate the  residence  both  temporary  and  permanent  of 
citizens  of  one  state  in  other  states,  seems  to  require 
that  a general  rule  should  govern  as  to  the  acquisition 
of  citizenship.  The  principles  of  feudalism  are  accom- 
plished with  the  necessities  of  trade  and  commerce, 
and  the  practice  in  the  relations  between  states  which 
grow  out  of  them.  Modern  civilization  has  repudiated 
every  vestige  of  the  feudal  law  in  this  regard,  with 
the  exception  of  the  rule  in  the  English  practice  as  to 
which  there  was  a wide  diversity  of  opinion  among  the 
commissioners  in  1868.  By  them  it  has  been  freed 
from  the  unbending  rule  that  allegiance  was  indelible. 
A child  born  of  English  parents  in  England  is  now  a 
citizen  by  birth  with  the  privilege,  when  the  child 


IN  THE  UNITED  STATES. 


109 


readies  majority,  of  choosing  a citizenship  compatible 
with  its  belief  in  its  future  welfare  and  prosperity. 
This  relaxation  of  the  common  law  rule  is  an  approach 
toward  the  rule  as  known  to  the  practice  in  the  com- 
mon law  as  recognized  between  nations. 

The  rule  acquisition  of  citizenship  by  descent  or  ex- 
traction is  a natural  law,  one  which  govern  all  man- 
kind all  the  world  over.  Whereas  the  rule  acquisition 
of  citizenship  for  reason  of  locality  of  birth  is  merely  a 
municipal  law  which  can  have  no  extra-territorial  effect 
and  never  has  had  any  as  is  obvious  from  the  English 
practice,  which  in  point  of  fact,  recognized  the  rule  of 
descent  or  extraction  as  to  its  subjects  born  of  Eng- 
lish parents  in  foreign  countries,  attaching,  however, 
as  a rule  for  municipal  protection  the  indelibility  of 
allegiance  to  the  English  sovereign. 

PRACTICE  UNDER  THE  RULE  CITIZENSHIP  BY  DESCENT 
WITH  GERMANY. 

The  case  of  Ludwig  Hansding.  He  was  born 
in  the  United  States  of  German  parentage ; removed 
to  his  father’s  native  land  while  a minor ; his  father 
subsequently  became  a naturalized  citizen  of  the 
United  States.  Protection  was  denied  him  on  the 
ground  that  he  had  never  dwelt  in  the  United  States 
as  a citizen  of  the  United  States.  The  father,  by  the 
act  of  naturalization,  changed  the  citizenship  of  the 
son ; but  the  son  not  having  dwelt  within  the  United 
States  according  to  section  2172  of  the  Revised  Stat- 
utes, Hansding  was  held  to  be  a subject  of  Germany. 
Birth  in  the  United  States  did  not  govern.  Mr.  Fre- 
linghuysen,  secretary  of  state  to  Mr.  Kasson,  Januaiy 
15,  1885..' 


no 


THE  LAW  OF  CITIZENSHIP 


With  Germany.  The  case  of  Richard  Greisser. 
He  was  horn  in  the  United  States.  His  father  was 
at  the  time  a German  subject  and  domiciled  in  Ger- 
many. He  left  the  United  States  with  his  mother  to 
join  his  father  in 'Germany,  where  during  a portion  of 
his  minority  he  resided  until  the  death  of  his  father, 
at  which  time,  and  while  still  a minor,  he  went  to 
Switzerland  to  reside.  At  the  time  of  his  birth,  he 
was  subject  to  a foreign  power,  following  the  citizen- 
ship of  his  father,  who  was  a German,  and  being  such 
under  section  1992,  Revised  Statutes,  was  held  to  be  a 
German  and  protection  was  denied  him.  Although 
under  the  fourteenth  amendment  of  the  constitution 
all  persons  born  or  naturalized  in  the  United  States 
and  subject  to  the  jurisdiction  thereof  are  citizens  of 
the  United  States,  yet  following  the  citizenship  of  the 
father,  he  was  held  not  to  be  subject  to  the  jurisdiction 
of  the  United  States  and  on  this  further  ground  the 
protection  was  denied  him.  Mr.  Bayard,  secretary  of 
state,  to  Mr.  Winchester,  November  28,  IS 85. 

The  remarkable  point  in  this  case  is  that  the  appli- 
cant did  not  apparently  claim  protection  as  against  the 
country  of  which  his  father  was  a citizen,  but  on 
general  principles  as  a resident  of  Switzerland  de- 
manded a passport  for  protection  in  foreign  countries 
as  a citizen  of  the  United  States. 

With  Germany.  An  interesting  case  is  that  of  one 
Hans.  He  was  a posthumous  child  ; his  father  was  not 
naturalized  but  had  acquired  a permanent  residence 
during  four  years’  stay  prior  to  his  death.  Soon  after 
the  death  of  the  father,  the  mother  took  the  son  to 
Germany,  where  she  resided  with  him  continuously. 


IN  THE  UNITED  STATES. 


Ill 


He  applied  for  protection  as  a citizen  of  the  United 
States.  The  question  was  whether  the  act  of  the 
mother  in  returning  with  her  minor  son  could  change 
the  citizenship  of  the  son,  he  being  born  in  the  United 
States. 

By  marriage,  the  father  becomes  the  head  of  the 
family  ; the  wife  becomes  a member  of  the  family  and 
remains  such  together  with  the  children  which  may  be 
lawfully  born  to  them.  In  case  the  father  were  a 
German  and  the  wife  an  Englishwoman  she  would  fol- 
low the  citizenship  of  her  husband  as  would  the  chil- 
dren. Suppose,  however,  that  the  Englishwoman  had 
children  by  a former  husband,  an  Englishman,  and 
after  his  death  she  should  marry  a German ; the  mar- 
riage with  the  German  would  change  her  citizenship, 
but  not  that  of  her  children  by  her  former  husband. 
Her  change  of  citizenship  by  an  act,  would  not  change 
with  it  the  citizenship  of  the  children  for  reason  that 
she  does  not  legally  become  the  recognized  head  of  the 
family;  in  other  words,  the  death  of  the  husband  does 
not  change  her  relation  to  the  family  as  that  of  mem- 
ber to  that  of  head  of  the  family.  Bluntschli  Voelker 
Eecht,  § 366  ; Von  de  Bar,  § 31 ; 1 Foelix,  pp.  54,  55, 
94. 

The  son  was  in  Germany  at  the  time  of  his  appli- 
cation for  protection  as  against  the  demands  of  the 
German  authorities  to  perform  military  duty  as  a sub- 
ject of  Germany. 

It  was  held  that,  ‘‘As  he  is  now  in  Germany  the 
question  is  one  which,  if  military  service  be  insisted  on, 
must  be  presented  to  the  German  government  for  con- 
sideration, and  their  views  heard  before  this  depart- 


112 


THE  LAW  OF  CITIZENSHIP 


ment  can  express  any  final  determination  in  this  rela- 
lation.  Mr.  Bayard,  secretary  of  state,  to  Mr.  Lieb- 
man,  July  9,  1886 ; Lamar  vs.  Mican,  112  U.  S. 
452. 

With  Germany.  It  was  laid  down  by  Mr.  Evarts, 
secretary  of  state,  to  Mr.  White,  June  6,  1879,  as  a rule, 
that  children  born  in  the  United  States,  of  former 
Gei*mans  naturalized  in  the  United  States,  though  taken 
back  to  Germany  for  a few  years  during  minority  and 
having  returned  to  the  United  States  during  minority, 
were  citizens  upon  reaching  majority  if  they  elected 
to  become  such. 

This  rule  would  hold  so  far  as  concerns  the  laws  of 
the  United  States,  provided  the  father  did  not  change 
his  citizenship  by  re-acquisition  of  his  former  German 
citizenship.  If  the  father  did  so  during  the  minority 
of  his  children,  this  act  would  carry  with  it  a change 
in  the  citizenship  of  his  children  so  far  as  concerns  the 
German  law  ; the  children  must  then,  in  order  to  be- 
come citizens  of  the  United  States,  comply  with  the 
statutes  of  naturalization  and  take  up  a permanent 
residence  in  the  United  States. 

The  condition  on  this  rule  is  confirmed  by  Mr. 
Frelinghuysen,  secretary  of  state,  to  Mr.  O’Neil, 
August  8,  1882,  wherein  it  is  laid  down:  child 

born  in  this  country  to  a German  subject,  is  subject, 
if  he  put  himself  in  German  jurisdiction,  to  German 
laws.”  That  is,  provided  the  father,  after  his  natural- 
ization in  the  United  States  again  becomes  a subject 
of  Germany.  It  follows  without  saying,  that  if  the 
father  never  was  naturalized  in  the  United  States, 
and  while  in  the  United  States,  had  children  born  to 


IN  THE  UNITED  STATES. 


113 


him,  that  the  children  follow  the  father’s  nationality, 
and  upon  return  to  Germany,  the  children  become 
immediately  subject  to  German  law.  This  is  laid 
down  by  Mr.  Frelinghuysen  to  Mr.  Cramer,  June  4, 
1883  : “A  child  born  in  the  United  States  to  a 
foreign  father,  when  taken  by  his  father  abroad, 
acquires  the  father’s  domicile  and  nationality.” 

With  Germany.  The  case  of  Steinkauler.  He  was 
born  in  the  United  States.  His  father  was  a natural- 
ized citizen ; a native  of  Germany.  Four  years  after 
the  birth  of  his  son,  which  was  in  1855,  he  returned 
with  his  family,  including  his  son,  to  Germany,  and 
continued  to  reside  there  until  1875,  when  the  German 
government  called  upon  the  son  as  a German  subject 
to  perform  military  service. 

It  was  held,  that  “ under  the  treaty  as  between  the 
United  States  and  the  German  government,  and 
according  to  the  rule  declared  in  section  1999  of 
Revised  Statutes,  the  father  renounced  his  natural- 
ization in  America,  and  become  a German  subject. 
By  virtue  of  the  German  laws,  his  son  being  a minor, 
also  acquired  German  ’ nationality.  Having  at  the 
same  time  an  American  nationality  by  birth,  he  had 
thus  a double  nationality.  15  Op.  Atty-Genl.  15. 

Under  this  rule  he  followed  the  citizenship  of  the 
father.  By  the  treaty  which  was  ratified  in  1868, 
between  Germany  and  the  United  States,  the  father 
was  presumed,  after  a continued  residence  of  two 
years,  to  have  renounced  his  American  citizenship. 
This  presumption  of  change  in  citizenship  as  to  the 
father  carried  with  it  a change  in  the  citizenship  of 
the  son.  The  son  was  held  to  perform  military  ser- 
15 


114 


THE  LAW  OF  CITIZENSHIP 


vice  as  a subject  of  Germany.  The  recognition  of  his 
claim  as  a citizen  of  the  United  States  was  denied 
him.  This  is  borne  out  of  the  opinion  of  the  attorney- 
general,  who  decided  that  the  son  had  a double  nation- 
ality. This  double  nationality  may  or  may  not  be 
convenient.  The  position  is  not  sustained  by  the 
authorities  on  international  law.  Either  he  was  or 
was  not  a citizen  of  the  United  States.  If  lie  was  a 
citizen  of  the  United  States,  he  was  a citizen  of  the 
United  States  all  the  world  over,  in  Germany,  as 
well  as  elsewhere.  Nothing  short  of  this  can  be 
citizenship  in  the  United  States.  The  dictum  that 
Steinkauler  was  a citizen  of  the  United  States  when 
in  the  United  States,  and  a subject  of  Germany  when 
in  Germany,  is  certainly  a remarkable  phase  of  Ameri- 
can citizenship.  This  relation  is  denied  in  particular 
by  the  German  authorities. 

Bluntschli  Voelker  Eecht,  section  373,  states  : “The 
rule  is,  every  individual  can  be  bounden  as  citizen  to 
only  one  state.” 

Chief  Justice  Cockburn  : “Under  a sound  system 
of  international  law  such  a thing  as  a double  nation- 
ality should  not  be  suffered  to  exist.” 

Phillimore  International  Law  : “An  individual  can 
have  only  one  allegiance.” 

Field  International  Law : “ One  cannot  be  at 

one  and  the  same  time  a citizen  of  two  states.” 

Cicero  pro  Balbo  : “According  to  our  civil  law  no 
one  can  be  a citizen  of  two  cities  at  the  same  time.” 

The  rule  is  well  laid  down  by  Phillimore  Inter- 
national Law,  volume  I,  page  38  : “In  this  connection, 
that  the  son  as  long  as  he  remains  a minor  follows  the 


IN  THE  UNITED  STATES. 


116 


citizenship  of  the  father,  whether  the  citizenship 
be  original  or  acquired  by  naturalization.” 

Again,  by  Vattel  in  his  Law  of  Nations,  page  102, 
and  Foelix’s  Droit  Internat.  Prive. 

With  Germany.  Case  of  George  Weigand.  Born 
in  the  United  States  in  1850.  His  father  was  a native 
of  Germany,  and  was  a naturalized  citizen  of  the 
United  States,  at  the  time  of  his  son’s  birth.  In  1871, 
the  father  and  son  visited  Germany,  and  took  up 
their  residence  in  Cologne.  In  1881,  the  son  was 
summoned  to  do  military  service.  He  claimed  protec- 
tion and  it  was  held  by  the  German  government  after 
investigation,  that  Weigand  could  not  be  held.  For. 
Eel.  of  U.  S.,  1882,  p.  187. 

With  Germany.  Case  of  Charles  William  Schei- 
bert.  He  was  born  in  the  United  States  in  1856.  His 
father  had  emigrated  from  Germany  to  the  United 
States  in  1856;  became  a naturalized  citizen  in  1864, 
and  in  1869  with  all  his  family  returned  to  Germany, 
where  they  remained  and  were  living  in  the  year  1882, 
when  the  son  Charles  William  was  suddenly  impressed 
into  the  military  service.  Protection  was  denied  to 
him  by  the  government  of  the  United  States  because 
it  proved  upon  investigation  that  the  father  had  ap- 
plied for  naturalization  as  a German  citizen  and  that 
the  same  had  been  granted  to  him.  It  was  held  that 
he  was  a German  citizen.  For.  Eel.  of  U.  S.,  1883,  p. 
344. 

With  Germany.  The  case  of  John  Charles  Blesch. 
He  was  born  in  the  United  States  of  parents,  natives 
of  Germany,  but  naturalized  citizens  of  the  United 
States,  in  the  year  1851.  In  1859  he  went  to  Germany 


116 


THE  LAW  OF  CITIZENSHIP 


with  his  mother,  his  father  having  died  in  the  mean- 
time. In  1877,  he  asked  protection  as  an  American 
citizen  from  the  United  States.  It  was  held  that  by  his 
conduct  neither  he  nor  his  mother  by  her  conduct 
contemplated  a return  to  the  United  States  and  the 
protection  was,  therefore,  denied  him.  The  rule  laid 
down  in  Steinkauler’s  case  was  held  to  be  applicable. 
It  is  difficult  to  perceive  how  it  could  be.  Certainly 
any  change  in  the  citizenship  of  the  mother  would  not 
affect  the  citizenship  of  the  son.  His  father  had  died 
in  the  United  States.  The  son  became  a citizen  of  the 
United  States  as  the  son  of  a father  who  was  an 
American  citizen  at  the  time  of  his  son’s  birth.  In 
Steinkauler’s  case  the  father  returned  with  the  son; 
the  father  was  a native  of  Germany  and  as  such,  having 
been  naturalized  in  the  United  States,  came  within  the 
provisions  of  the  treaty  of  1868.  In  the  case  of  Blesch, 
no  provision  of  the  treaty  is  applicable.  For.  Eel.  of 
U S.,  1877,  p.  247. 

With  Germany.  The  case  of  Mrs.  C.  W.  Kroemer. 
Both  she  and  her  husband  were  natives  of  Wurtem- 
berg.  They  were  married  in  the  United  States  and 
their  children  were  born  there.  Her  husband  died  in 
the  United  States,  and  she  with  her  minor  children 
resumed  her  residence  in  Wurtemberg  in  1865.  She 
preserved  no  domicile  in  America  and  paid  no  taxes. 
She  owned  property  and  paid  taxes  in  Wurtemberg. 
She  applied  for  a passport  for  protection  for  herself 
and  her  children,  stating  that  she  should,  at  some  time, 
return  to  the  United  States  for  the  benefit  of  her  chil- 
dren. It  was  held  that  the  passport  could  not  be 
granted  and  remarked  that  the  purpose  was  to  prevent 


IN  THE  UNITED  STATES. 


117 


the  military  authorities  putting  her  sons  in  the  army. 
For.  Kel.  of  U.  S.,  1877,  p.  247. 

The  ruling  would  seem  to  be  correct.  The  children 
were  born  in  America  of  parents  aliens  and  subjects 
of  a foreign  power.  The  father  had  taken  no  steps  to 
become  a citizen  of  the  United  States.  They  were 
children  of  German  parents  born  abroad,  and  under 
the  German  rule  followed  the  citizenship  of  the  father. 

With  Germany.  Case  of  David  Lemberger.  He 
was  born  in  the  United  States  in  1862.  His  father 
was  a native  of  Germany  and  in  1860  became  a natural- 
ized citizen  of  the  United  States.  In  1870  he  returned 
to  Germany  and  there  took  up  his  residence,  when  in 
1884  he  was  forced  into  the  army  to  perform  military 
service ; but  was  subsequently  released.  Very  soon 
thereafter  he  was  given  the  option  by  the  German 
government  to  become  a German  citizen  or  submit  to 
expulsion  from  the  country  on  the  ground  that  he  be- 
longed to  that  class  of  Germans  who  use  their  Ameri- 
can citizenship  as  a means  for  evasion  of  military  duty. 
The  question  was  determined  on  other  grounds  and  he 
concluded  to  become  a German  citizen.  For.  Hel.  of 
U.  S.,  1855,  pp.  429,  436. 

With  France.  Case  of  Alfred  P.  Jacob,  Born  in 
the  United  States  of  French  parents,  he  was  registered 
in  the  French  consulate  as  a French  subject  by  his 
father ; subsequently  his  father  became  a naturalized 
citizen  of  the  United  States,  and  when  Jacob  was  sev. 
enteen  years  of  age  he  was  given  an  American  pass- 
port and  then  went  to  France,  where  he  was  impressed 
into  the  service  as  a French  soldier  and  served  for  the 
term  of  four  years.  He  was  desirous  that  his  name 


118 


THE  LAW  OF  CITIZENSHIP 


should  not  remain  on  the  French  rolls  after  his  service 
and  applied  to  have  it  withdrawn.  The  French  au- 
thorities took  the  position  that  Jacob’s  father  having 
been  a Frenchman  when  he  was  born,  that  Jacob  fol- 
lowed his  nationality  until  it  had  been  decided  by  a 
court  of  competent  jurisdiction  in  France,  that  the 
naturalization  of  the  father  in  the  United  States 
effected  a change  in  the  citizenship  of  his  son. 

The  government  of  the  United  States  ruled  that  he 
was  an  American  citizen,  his  status  as  such  dating 
from  his  father’s  naturalization.”  F.  E..  of  U.  S.,  1883, 
p.  145. 

With  France.  The  case  of  Charles  Drevet.  His 
father  came  to  the  United  States  as  a French  citizen 
in  1852.  In  1858,  his  father  declared  his  intent  to  be- 
come a citizen  of  the  United  States.  In  1859  he  mar- 
ried an  American  lady.  In  1860  he  returned  to 
France.  In  1869,  he  returned  to  the  United  States  and 
took  out  his  second  papers  and  shortly  afterward  re- 
sumed his  residence  in  France.  The  son  was  born  and 
always  resided  in  France.  Neither  the  son  nor  the 
father  ever  expressed  any  intention  of  residing  in  the 
United  States. 

He  claimed  protection,  which  was  denied  him.  It 
was  held  that  he  was  not  entitled  to  recognition  as  a 
citizen  of  the  United  States.  Mr.  Bayard,  secretary 
of  state,  to  Mr.  McLane,  July  4,  1885. 

The  refusal  was  undoubtedly  based  on  the  clause, 
dwelling  in  the  United  States,”  which  the  son  had 
never  done. 

With  France.  The  case  of  Eugene  Albert  Verde- 
let.  He  was  born  in  France.  His  father  had  resided 


IN  THE  UNITED  STATES. 


119 


in  the  United  States  thirty  five  years  and  in  1S53,  be- 
came a naturalized  citizen  of  the  United  States.  In 
1859  he  returned  to  France  where  the  applicant,  his 
son,  was  born.  It  was  held  he  was  not  entitled  to  pro- 
tection from  the  United  States,  the  reasons  being 
that  he  had  always  resided  in  France  and  failed  to  ex- 
press any  intention  of  coming  to  the  United  States  to 
reside,  although  property  interests  may  render  it  nec- 
essary for  him  to  visit  the  United  States  at  some  future 
time.  Mr.  Frelinghuysen,  secretary  of  state,  to  Mr. 
Morton,  IsTovember  9,  1883. 

In  connection  with  this  case  another  point  was  con- 
sidered. Verdelet,  when  born,  was  born  as  the  son  of 
a naturalized  citizen  of  the  United  States,  residing  in 
a foreign  country,  and  in  this  case  in  the  country  of 
his  origin. 

The  Revised  Statutes,  section  1993,  declare  children 
born  out  of  the  limits  of  the  United  States,  whose 
fathers  were  or  may  be  at  the  time  of  their  birth,  citi- 
zens of  the  United  States,  to  be  citizens  of  the  United 
States. 

This  statute  is  held  to  mean  that  the  legislation  of 
the  United  States  should  not  be  construed  so  as  to  in- 
terfere with  the  allegiance  which  such  children  so  born 
owe  to  the  country  of  their  birth,  while  they  continue 
within  its  territory.  Under  this,  if  the  French  gov- 
ernment should  see  fit  to  hold  Verdelet  as  a citizen  of 
France  for  reason  of  birth  within  its  territory,  it 
might  do  so,  and  the  government  of  the  United  States 
could  not  interfere  with  such  a claim,  if  made  by  the 
French  government  upon  him. 

With  France.  In  the  case  of  a child  born  of 


120 


THE  LAW  OF  CITIZENSHIP 


French  parents  in  the  United  States  who  with  his  pa- 
rents returned  to  France  during  his  minority,  it  was 
held  that  after  majority,  having  remained  in  France, 
he  could  not  claim  protection  from  the  United  States. 
Mr.  Evarts,  secretary  of  state,  to  Mr.  Noyes,  December 
31,  1878. 

With  Austria.  The  case  of  Francois  Heinrich. 
Born  in  the  United  States  of  citizens  of  Austria,  and 
while  temporarily  sojourning  in  the  United  States. 
When  of  the  age  of  two  years  he  was  taken  by  his 
parents  to  the  empire  of  Austria  and  there  resided 
for  twenty  years,  when  he  made  a claim  for  protection 
as  an  American  citizen.  It  was  held  that  he  was  not 
entitled  to  protection  as  a citizen  of  the  United  States, 
so  long  as  he  remained  within  the  jurisdiction  of  the 
Austro-Hungarian  dominion.  F.  R.  of  U.  S.,  1873, 
pp.  78,  79. 

Under  the  statute  of  1866  he  was  born  of  parents 
subject  to  a foreign  power.  It  is  not  claimed  that  this 
statute  was  retroactive  in  its  effect  and,  therefore,  would 
not  be  applicable,  Heinrich  having  been  born  in  the 
United  States  in  the  year  1850. 

Under  the  statute  of  1802,  all  persons  heretofore 
born  or  hereafter  born  of  citizens  of  the  United  States, 
etc.,  are  citizens  thereof,  he  could  not  be  included,  be- 
cause his  parents  were  Austrians. 

Under  the  Austrian  rule,  a foreign  born  child  of 
Austrian  parents  takes  the  nationality  of  the  latter 
and  is  regarded  as  an  Austrian. 

The  Austrian  government  claimed  him  for  service 
in  the  military  as  a subject  of  Austria.  This  service 
he  was  ordered  to  perform.  The  protection  of  the 


IN  THE  UNITED  STATES. 


121 


United  States  was  rightfully  denied  him.  He  followed 
throughout  the  citizenship  of  his  father,  which  the 
father  had  never  seen  fit  to  change. 

With  Austeia.  The  case  of  Frederick  de  Bourry. 
He  was  born  in  the  United  States  of  Austrian  parents 
and  resided  in  the  United  States  for  five  years.  He 
then  returned  with  his  mother  to  Austria,  where  he 
was  subsequently  joined  by  his  father.  At  the  time 
of  making  his  application  for  protection  he  was  in  the 
employ  of  the  Austrian  government.  He  was  then 
three  years  in  his  majority  and  his  father  had  always 
retained  his  Austrian  citizenship.  He  had  taken  no 
steps  to  elect  his  citizenship,  even  if  a dual  citizenship 
was  claimed,  and  for  this  reason,  in  connection  with 
his  conduct  in  Austria,  it  was  held  that  he  had  no  in- 
tent to  become  a citizen  of  the  United  States  and  pro- 
tection was  denied  him.  Mr.  Bayard,  secretary  of  state, 
to  Mr.  Lee,  July  24,  1886. 

It  has  been  held  that  an  American  citizen  may  enter 
the  land  or  naval  service  of  a foreign  government, 
without  divesting  himself  thereby  of  his  rights  of 
citizenship.  The  Santissima  Trinidad,  1 Brocken- 
brough,  478. 

Therefore,  by  this  act,  he  would  not  have  lost  his 
citizenship  in  the  United  States,  if  he  had  any. 

But  he  was  a child  born  to  an  alien  in  the  United 
States,  and  lost  his  citizenship  on  leaving  the  United 
States,  and  returning  to  his  parent’s  allegiance.  Mr. 
Blaine,  secretary  of  state  to  Mr.  O’Neil,  November  15, 
1881. 

He  followed  the  citizenship  of  his  father ; his  father 
made  no  change  of  citizenship  by  which  to  affect  that 


122 


THE  LAW  OF  CITIZENSHIP 


of  the  son ; the  father  retained  his  Austrian  citizen- 
ship, as  did  the  son.  It  is  true  that  he  was  born  in  the 
United  States,  but  was  born  of  parents  subject  to  a 
foreign  power,  namely,  subject  to  Austria,  which  rule 
extended  to  the  son,  and  on  this  ground  the  refusal 
could  have  been  made. 

With  Austria.  Case  of  Anton  Wurgletts  and 
family.  Wurgletts  emigrated  from  Hungary  in  1851 
to  the  United  States.  He  became  a naturalized  citizen  of 
the  United  States  in  1856,  where  he  lived  sixteen  years 
and  had  children  born  there.  He  returned  to  Hun- 
gary in  1869  and  took  his  children  with  him.  Appli- 
cation was  made  for  protection  on  the  ground  that  the 
children  desired  to  return  to  America,  though  the 
father  did  not  appear  to  intend  personally  to  return  to 
America.  It  was  held  that  the  family  had  retained  its 
American  citizenship  and  the  protection  was  afforded. 
F.  R.  of  U.  S.,  1881,  pp.  30,  52. 

With  Switzerl/^nd.  The  case  of  Robert  Emden. 
He  was  born  in  Switzerland,  of  parents  naturalized 
in  the  United  States.  He  himself  had  never  been  in 
the  United  States.  The  date  of  birth  was  1862. 
The  date  of  the  father’s  naturalization  in  the  United 
States  was  1854.  Soon  thereafter,  he  returned  to  his 
country  of  origin,  and  continued  to  reside  there, 
where  his  son  was  born  in  1862. 

It  was  held  : Undoubtedly,  by  the  laws  of  nations, 
an  infant  child  partakes  of  his  father’s  nationality  and 
domicile.  But  there  are  two  difficulties  in  applying 
the  rule  in  the  present  case.  In  the  first  place,  a 
parent’s  nationality,  cannot,  especially  when  produced 
by  naturalization,  be  presumed  to  be  adhered  to  after 


IN  THE  UNITED  STATES. 


123 


a residence  in  the  country  of  origin  for  so  long  a 
period  as  in  the  present  case.  In  the  second  place, 
the  rule  as  to  children  only  applies  to  minors,  since, 
when  the  child  becomes  of  age  he  is  required  to  elect 
between  the  country  of  his  residence  and  the  country 
of  his  alleged,  technical  allegiance.  This  may  be  in- 
ferred from  the  conduct  of  the  parties. 

^‘Applying  these  tests  to  the  present  case,  it  can 
hardly  be  said  that  Mr.  Robert  Emden’s  claim,  to  be 
a citizen  of  the  United  States,  is  as  a matter  of  inter- 
national law  made  out. 

The  protection  was  denied  him.  He  was  held  not 
to  be  a citizen  of  the  United  States,  and  it  was  recom- 
mended that  his  proper  course  was  to  return  to  the 
United  States  and  become  naturalized.  Mr.  Bayard, 
secretary  of  state,  to  Mr.  Winchester,  September  14, 
1885. 

With  Switzerland.  The  case  of  Joseph  Speck. 
He  was  born  in  the  United  States  of  Swiss  parents. 
While  a minor,  his  father  returned  with  him  to 
Switzerland.  It  was  held  that  his  status  according  to 
well  understood  principles  of  international  and  munic- 
ipal law,  followed  that  of  the  father,  until  the  boy 
reached  majority.  For  this  reason  no  protection  was 
extended  to  him.  Mr.  F.  W.  Seward,  acting  secretary 
of  state,  to  Mr.  Fish,  August  20,  1878. 

With  Italy.  The  case  of  John  Peter  Sharboro.  He 
was  born  in  the  United  States  in  1852  of  Italian 
parents;  in  1860  his  father  became  a naturalized  cit- 
izen of  the  United  States.  At  the  time  of  his  birth 
his  father  was  a subject  of  Italy.  He  was  a subject 
to  a foreign  power ; the  son  followed  the  citizenship 


124 


THE  LAW  OF  CITIZENSHIP 


of  the  father.  When,  however,  the  father  became  a 
citizen  by  naturalization,  the  act  carried  with  it  a 
change  in  the  citizenship  of  the  son,  and  the  son 
thereby  became  a citizen  of  the  United  States.  Mr. 
Fish,  secretary  of  state,  to  Mr.  Marsh,  May  19,  1871. 

With  China.  The  case  of  John  Frederick  Pearson. 
An  American  citizen  born  of  American  parents  in  the 
United  States,  by  name  Frederick  Pearson,  lived  many 
years  in  China,  and  did  business  there.  While  there 
he  married  a Chinese  woman,  contracting  the  marriage 
under  a law  foreign  to  China,  by  whom  he  had  children 
born,  of  whom  John  Frederick  Pearson  was  one,  who 
inquired  as  to  his  status  in  citizenship ; the  father 
died  in  China  in  1868.  During  his  youth  he  was 
educated  for  a time  in  the  United  States  and  in  England, 
and  subsequently  returned  to  China.  The  applicant 
was  born  in  China ; lived  in  China  continuously,  with 
the  exception  of  six  years’  residence  abroad  for  his  edu- 
cation. His  dress  and  habits  were  Chinese,  and  his  in- 
quiry was  for  the  purpose  of  gaining  such  advantages 
as  American  citizenship  would  give  him,  by  register- 
ing himself  as  such  with  the  American  authorities. 

It  was  not  held  definitely  in  what  relation  he  did 
stand  to  the  government  of  the  United  States. 

In  viewing  the  subject,  the  opinion  rendered  was  as 
follows : The  rule  of  law  undoubtedly  is,  that  in 

doubtful  cases  the  presumption  in  favor  of  legitimacy 
is  to  control,  and  the  conclusion,  therefore,  must  be 
that  John  Frederick  Pearson,  whose  rights  are  here 
investigated,  being  a legitimate  son  of  Frederick 
Pearson  by  a Chinese  wife,  assumes  his  father’s  nation- 
ality.” Op.  of  Wharton,  F.  R.  of  U.  S.,  1885,  p.  172. 


IN  THE  UNITED  STATES. 


125 


The  first  question  would  be,  what  was  the  law  of 
the  United  States  at  the  date  of  the  marriage  of  Fred- 
erick Pearson  in  China  to  a Chinese  woman ; and  second, 
what  was  it  at  the  date  of  the  birth  of  John  Frederick 
Pearson. 

There  was  at  that  date  no  law  of  the  United  States 
which  prohibited  the  marriage  of  an  American  to  a 
Chinese  woman,  and  thus  by  that  act  of  the  American 
citizen,  the  citizenship  of  husband  was  conferred  on 
his  wife.  This  was  the  law  of  marriage  with  foreign- 
ers and  the  Chinese  women  were  no  exception. 

Again  there  was  at  that  date  no  law  of  the  United 
States  which  prohibited  Chinese  from  becoming  citi- 
zens of  the  United  States.  Pearson’s  father  was  a 
citizen  of  the  United  States  ; as  such  he  (John)  shared 
the  citizenship  of  his  father. 

His  mother  became  an  American  citizen  by  the  mar- 
riage and  the  son  became  an  American  by  right  of  de- 
scent from  the  father. 

With  the  exception  of  some  few  years’  residence  in  the 
United  States  for  education,  which  cannot  be  consid- 
ered as  any  purpose  on  his  part  to  reside  in  the  United 
States,  he  has  always  resided  in  China,  and  expressed 
no  intent  to  reside  in  the  United  States. 

John  Frederick  Pearson  had  never  dwelt  in  the 
United  States  with  bona  fide  intent  to  affect  his  citi- 
zenship. He  had  passed  the  age  of  majority  and  had 
made  no  election  to  retain  or  renounce  his  American 
citizenship.  It  remained  to  be  inferred  and  the  in- 
ference must  be  with  a view  to  his  age  at  the  time  of 
his  application,  at  this  time  he  was  thirty-two  years 
old. 


126 


THE  LAW  OF  CITIZENSHIP 


“By  virtue  of  the  treaty  between  the  United  States 
and  China  of  1844,  all  citizens  of  the  United  States  in 
China,  enjoy  complete  rights  of  extra-territoriality  and 
are  answerable  to  no  authority  but  that  of  the  United 
States.”  7 Op.  Atty.-Genls.  495. 

If  by  the  treaty,  such  children  were  to  be  held  by  a 
fiction  of  law  to  be  born  in  the  United  States,  the  case 
of  Pearson  would  seem  clear  at  the  time  of  his  birth. 
Another  element,  however,  seems  to  enter  into  the  dis- 
cussion ; that  is,  does  the  law  of  China  sanction  the 
marriage  of  a Chinese  woman  to  an  alien  ? Should  it 
not,  then,  by  that  law,  the  child  would  be  illegitimate 
and  follow  the  citizenship  of  the  mother.  The  mar- 
riage was  contracted  in  China,  and  as  such  was  a mat- 
ter of  record,  but  not  among  the  records  of  the  Chinese 
authorities. 

The  claimant  being  in  China  is  governed  by  Chinese 
law,  if  that  government  should  maintain  that  the  mar- 
riage was  illegal.  Were  he  in  the  United  States,  the 
question  of  the  legitimacy  of  the  marriage  would  be 
governed  by  the  law  of  China  affecting  the  capacity  of 
the  mother  to  enter  into  the  marriage  contract. 

Should,  however,  the  law  of  China  not  present  such  a 
marriage,  then  it  would  seem  that  the  extra- territoriality 
extended  to  citizens  of  the  United  States  there  resid- 
ing, would  govern. 

It  cannot  be  held  that  subsequent  legislation  on 
the  Chinese  question  should  have  any  retroactive 
effect,  only  in  this  regard  that  it  might  prevent  his 
election  to  become  a citizen  of  the  United  States,  the 
Chinese  being  excluded  from  the  acquisition  of  that 
right.  This  legislation  was  in  1876.  When  reaching 


IN  THE  UNITED  STATES, 


127 


majority,  he  failed  to  exercise  the  right  of  election, 
which  was  in  1875.  Having  failed  to  do  so  the  ex- 
ercise of  the  right  could  be  denied  him  subsequent  to 
the  legislation  as  passed  by  Congress. 

CONCLUSIONS  FROM  THE  PRACTICE  OF  THE  UNITED  STATES, 

The  rule  to  be  deduced  from  the  practice  in  these 
cases  is,  that  the  child  follows  the  citizenship  of  the 
parent.  That  the  citizenship  of  the  child  follows  that 
of  the  parent,  and  changes  whenever  the  parent  sees  fit 
to  make  a change. 

This  rule  seems  from  the  practice  to  be  subject  to 
conditions  precedent,  which  conditions  are  purely 
autonomous  and  are  open  to  question  as  to  their 
infiuence  on  the  practice  under  the  international  com- 
mon law  rules. 

Under  sections  1992  and  1993  of  the  Eevised 
Statutes  of  the  United  States,  children  born  of  parents 
residing  in  the  United  States,  subjects  to  foreign 
powers,  do  not  become  citizens.  This  is  in  consonance 
with  the  international  law  rule.  Should,  however, 
the  parent  subsequent  to  the  birth  of  the  child  be- 
come naturalized,  then  this  act  of  naturalization  car- 
ries vdth  it  a change  in  the  citizenship  of  the  child,  as 
was  held  in  the  case  of  Jacob  hereinbefore  cited. 
Should,  however,  the  child  depart  from  the  United 
States  prior  to  the  act  of  naturalization  by  the  parent, 
then  it  has  been  held  that  the  act  of  naturalization  of 
the  parent  does  not  effect  a change  in  the  citizenship 
of  the  child  unless  the  child  has  resided  within  the 
United  States  after  the  act  of  naturalization  of  the 
parent.  This  was  held  in  the  case  of  Hansding,  here- 
inbefore cited,  under  section  2172  of  the  Eevised 


128 


THE  LAW  OF  CITIZENSHIP 


Statutes  of  tlie  United  States.  This  rule  as  laid  down 
in  the  case  of  Hansding  is  an  innovation  on  the  prac- 
tice. Contrary  to  the  general  rule  that  a change  by 
the  parent  in  his  citizenship  carries  with  it  a change 
in  the  citizenship  of  his  child,  the  United  States  can- 
not by  a local  law  declare  the  child  of  one  of  its 
citizens  to  be  a citizen  of  nowhere  as  was  done  in  the 
case  of  Hansding.  There  must  be  a general  concur- 
rence of  all  states  in  the  practice  in  order  to  establish 
such  a rule.  If  the  parent,  Hansding’s  father,  had 
lawfully  departed  from  Germany,  and  had  lawfully 
become  a citizen  of  the  United  States,  what  was  at 
that  time  the  citizenship  of  the  child  ? Under  the 
German  rule,  the  child  follows  the  citizenship  of  the 
parent.  Again,  in  the  case  of  Blesch,  hereinbefore 
cited,  the  question  of  dwelling  in  the  United  States  is 
overcome,  for  he  had  dwelt  in  the  United  States. 
The  refusal  to  protect  him  declared  him  to  be  a citizen 
of  nowhere.  The  German  government  did  not  claim 
him,  nor  was  it  as  against  that  government  that  the 
protection  was  sought.  The  government  of  the  United 
States  proceeded  upon  an  inference  of  an  intent  con- 
strued from  his  acts,  that  he  did  not  intend  to  reside 
in  the  United  States.  For  this  there  appears  to  be  no 
statute  which  governs. 

It  is  well  settled  in  the  practice  that  every  individ- 
ual must  be  a member  of  some  society  or  state.  It  is 
well  defined  in  Field’s  International  Code,  page  130, 
that  “ a person  who  has  ceased  to  be  a member  of  a 
nation  without  having  acquired  another  national 
character,  is,  nevertheless,  deemed  to  be  a member  of 
the  nation  to  which  he  last  belonged. 


IN  THE  UNITED  STATES. 


129 


‘^The  United  States  has  not  the  power  to  declare  its 
members  to  be  citizens  of  nowhere,  and  cast  them 
upon  other  civilized  governments  for  protection.  The 
error  of  such  declarations  would  be  more  apparent 
should  the  necessity  of  support  arise  for  reason  of 
such  members  becoming  paupers.” 

Under  this  same  rule  may  be  brought  the  discussion 
in  Emden’s  case  hereinbefoi'e  cited,  which  was,  that  a 
naturalized  citizen  of  the  United  States  after  a pro- 
longed residence  in  the  country  of  his  origin  loses  his 
citizenship  in  the  United  States.  For  this  there  is  no 
statute  nor  any  law  by  which  a distinction  can  legally 
be  drawn  between  citizens  of  the  United  States. 
When  the  citizenship  is  lawfully  acquired  no  destruc- 
tion is  possible.  It  is  not  a question  of  the  manner, 
provided  the  acquisition  is  legal.  The  citizenship  car- 
ries with  it  protection  all  the  world  over,  and  one 
citizen  is  entitled  to  the  same  protection  when  abroad 
as  is  every  other  citizen  of  the  United  States. 

CITIZENSHIP  BY  NATURALIZATION  IN  THE  UNITED  STATES. 

Naturalization  signifies  the  act  of  adopting  a for- 
eigner and  clothing  him  with  the  rights  of  a citizen. 

Every  state  exercises  the  power  of  determining  who 
shall  enjoy  the  rights  of  membership  of  the  political 
society  or  body  politic  of  which  it  consists,  and  those 
who  are  invested  by  the  municipal  constitution  and 
laws  of  a country  with  this  quality  or  character,  and 
none  others,  are  citizens  of  the  society. 

This  investiture  must  be  in  pursuance  of  the  laws 
of  the  society  by  which  a change  in  citizenship  can  be 
effected. 


17 


130 


THE  LAW  OF  CITIZENSHIP 


Prior  to  the  passage  of  a general  naturalization  law 
by  the  congress  of  the  United  States,  the  states  in 
their  individual  capacity  took  it  upon  themselves  to 
legislate  on  this  question,  and  to  prescribe  the  method 
by  which  membership  in  these  respective  states  might 
be  acquired. 

When,  however,  the  act  of  1802  was  passed,  these 
rules  as  prescribed  by  the  different  states  were  of 
necessity  abrogated,  and  naturalization  was  alone 
possible  under  the  acts  of  the  United  States. 

EXPATRIATION. 

The  alien  seeking  citizenship  by  naturalization  in 
the  United  States  comes  from  a foreign  society.  Any 
rules  or  regulations  which  may  confer  the  right  of 
expatriation  on  citizens  of  the  United  States  do  not  in 
any  wise  affect  the  rights  of  such  alien  to  leave  his 
country ; it  matters  not  what  may  or  may  not  be  the  mu- 
nicipal rules  as  established  in  the  United  States.  These 
rules  do  not  and  cannot  govern  the  act  of  departure 
of  an  alien  from  the  country  of  his  origin,  nor  are  they 
under  any  circumstances  applicable  to  his  case.  This 
right  to  expatriate  himself  from  the  country  of  his 
origin,  and  his  right  of  departure  therefrom,  is  regu- 
lated by  such  rules  and  regulations  as  govern  in  the 
country  of  his  origin.  Upon  the  rules  no  tribunal  in 
the  United  States  can  definitely  pass  any  judgment 
which  will  be  of  any  validity  in  the  country  where 
such  rules  are  prescribed.  That  these  rules  are  differ- 
ent in  different  countries  is  beyond  a doubt,  and  the 
effect  of  such  rules  is  a matter  of  local  autonomy  in 
each  particular  society. 


IN  THE  UNITED  STATES. 


131 


■r 


THE  PRESUMPTION. 

The  presumption  upon  which  the  courts  of  the 
United  States  proceed  is  that  the  applicant  had  the 
right  to  expatriate  himself,  and  having  done  so  pursu- 
ant to  his  wishes  and  intent^  seeks  citizenship  by  natu- 
ralization in  the  United  States.  There  is  no  inquiry 
instituted,  nor  is  any  examination  prescribed  either  as 
to  law  or  fact,  as  regards  the  right  of  the  applicant  to 
depart  from  the  country  of  his  origin.  It  is  presumed 
that  he  is  in  full  exercise  of  his  rights  in  this  regard, 
and  no  court  presumes  to  pass  upon  the  question.  The 
alien  simply  offers  himself  for  citizenship  in  compliance 
with  the  rules  which  govern  naturalization  in  the 
United  States. 

THE  DECLARATION  OF  INTENT. 

This  is  strictly  an  expression  on  the  part  of  the  alien 
of  his  intention  to  renounce  his  allegiance  to  the  coun- 
try of  his  origin,  and  become  a citizen  of  the  United 
States.  It  is  nothing  more  and  nothing  less.  It  is  en- 
tered upon  the  records  of  the  court,  and  nothing  fur- 
ther may  be  done  by  the  applicant  toward  naturaliza- 
tion by  which  citizenship  is  acquired.  Asa  matter  of 
record,  this  declaration  of  intent  so  made  by  the  appli- 
cant may  raise  a question  of  good  moral  character.  It 
is  open  to  any  person  or  persons  to  answer  the  declara- 
tion of  intent  by  furnishing  evidence  to  show  that  the 
applicant  is  not  a fit  and  proper  person  to  be  admitted 
to  citizenship  in  the  United  States,  and  the  court  sit- 
ting in  the  case  may  hear  the  parties,  and  pass  judg- 
ment, either  allowing  or  disallowing  the  declaration  of 
the  applicant,  and  permitting  or  refusing  him  the  right 
to  proceed  and  perfect  his  naturalization. 


132 


THE  LAW  OF  CITIZENSHIP 


A case  in  point  is  Spencer’s  case  in  5 Sawyer,  195, 
wliere  evidence  of  conviction  of  a crime  more  than  five 
years  prior  to  his  application  for  naturalization,  but 
after  arrival  of  the  applicant  at  this  country,  was  held 
to  be  a bar  to  naturalization. 

OTHER  PREREQUISITES  TO  CITIZENSHIP. 

After  the  declaration  of  intention  to  become  a citi- 
zen has  been  filed,  the  applicant  shall  remain  in  the 
United  States  for  a term  of  years,  and  during  that  time 
shall  sustain  a good  moral  character. 

By  his  acts  and  doings  he  shall  attach  himself  to  the 
principles  of  the  constitution  of  the  United  States,  and 
show  himself  to  be  well  disposed  to  the  good  order 
and  happiness  of  the  same. 

Upon  these  points  he  is  to  furnish  two  reliable  wit- 
nesses, who  will  testify  under  oath  in  his  behalf,  and 
submit  to  any  examination  which  may  have  reference 
to  the  applicant  during  his  residence  in  the  United 
States,  from  the  date  of  his  arrival  to  the  date  of  the 
hearing  on  his  application. 

The  applicant  then  takes  the  oath  to  support  the 
constitution  of  the  United  States,  and  renounce  all  al- 
legiance and  fidelity  to  every  foreign  power. 

QUALIFIED  NATURALIZATION. 

Citizenship  is  not  conferred  until  all  the  require- 
ments of  the  naturalization  laws  have  been  complied 
with. 

Qualified  naturalization  cannot  exist.  Such  a rela- 
tion would  be  a stultification  of  the  rights  of  autonomy 
in  the  country  in  which  such  a principle  was  recognized. 
To  make  naturalization  depend  on  the  laws  of  another 


IN  THE  UNITED  STATES. 


133 


country,  or  to  await  the  pleasure  of  some  foreign  sov- 
ereign would  work  an  injustice  to  man  in  his  exercise 
of  his  right  of  removal. 

Were  our  courts  obliged  to  await  some  act  or  some 
authorization  from  a foreign  government  as  a condi- 
tion precedent  before  it  proceeded  to  a hearing  on  a 
petition  of  an  alien  for  naturalization,  the  effect  could 
not  be  predicted,  and  the  wrong  which  could  thus  be 
done  would  be  a hardship  to  the  applicant.  Mr.  Fre- 
linghuysen,  secretary  of  state,  to  Mr.  Cramer,  October 
19,  1882. 

Any  pre-existing  obligations  to  the  country  of  the 
applicant’s  origin  cannot  be  made  subjects  of  inquiry. 
Should  the  applicant  subsequently  return,  the  govern- 
ment of  the  country  in  which  he  was  naturalized  will 
not  protect  him  as  against  their  fulfilment  or  punish- 
ment for  default  in  their  performance  before  his 
departure. 

EFFECT  OF  THE  NATURALIZATION  ON  THE  MINOR  CHILDREN 
OF  THE  APPLICANT. 

The  principle  partus  sequuntur  patrem  is  here  de- 
monstrated. The  act  of  the  father  carries  with  it  a 
change  of  citizenship ; this  change,  by  implication,  car- 
ries with  it  a change  in  the  citizenship  of  the  minor 
children,  who  thereby  become  citizens  of  the  United 
States.  The  children  must,  however,  in  order  to  be- 
come citizens  upon  reaching  majority,  by  virtue  of  the 
act  of  naturalization  of  the  parent,  reside  within  the 
United  States. 

Under  section  2172  of  the  Ee vised  Statutes, 
originally  enacted  in  1802,  a child  of  a naturalized 


134 


THE  LAW  OF  CITIZENSHIP 


citizen  of  the  United  States,  in  order  to  become  him- 
self a citizen  of  the  United  States,  must  dwell 
therein. 

The  doctrine  of  the  changing  of  an  inf  ant’s  national- 
ity with  the  nationality  and  domicile  of  the  father  rests 
on  the  assumption  that  such  is  the  will  of  the  father, 
and  that  the  change  is  in  submission  to  his  paternal 
power.  10  Op.  Atty.-Genls.  329. 

Children  born  abroad  of  aliens  who  subsequently 
emigrated  to  this  country  with  their  families  and  were 
naturalized  here  during  the  minority  of  their  children 
are  citizens  of  the  United  States. 

A case  in  point  is  that  of  a Spanish  subject  by  birth 
who  was  naturalized  in  the  United  States  in  February, 
1876,  and  thereupon  his  son,  aged  twenty,  who  was 
born  in  the  island  of  Cuba,  applied  to  the  state  de- 
partment for  a passport,  stating  that  he  had  resided  in 
the  United  States  for  five  years,  but  that  it  was  his  in- 
tention to  resume  his  residence  in  the  Spanish 
dominions,  and  engage  in  business  there. 

It  was  held  that  the  son,  being  a minor  at  the  time 
of  his  father’s  naturalization,  must  be  considered  a 
citizen  within  the  meaning  of  section  2172,  Revised 
Statutes,  and  as  such  entitled  to  a passport,  and  that 
the  circumstance  that  he  intended  to  reside  in  the 
country  of  his  birth  did  not  make  him  less  entitled 
than  if  his  destination  were  elsewhere.  15  Op.  Atty.- 
Genls.  114. 

EXCEPTIONS  TO  THIS  RULE. 

The  father  must  have  complied  with  the  naturaliza- 
tion laws  in  order  to  become  a citizen,  by  which  act 
the  citizenship  is  conferred  to  his  minor  children.  To 


IN  THE  UNITED  STATES. 


135 


this  general  rule  there  is  an  exception,  and  probably 
not  more  than  one.  For  example.  An  alien  comes 
to  the  United  States  leaving  his  minor  children  in  the 
country  of  his  origin.  He  takes  no  steps  to  bring 
them  to  the  United  States  during  the  period  of  time 
essential  for  compliance  with  the  naturalization  laws, 
and  after  he  has  been  naturalized,  he  suffers  his  minor 
children  to  remain  in  the  country  from  which  he  de- 
parted. Under  these  circumstances,  the  United  States 
cannot  undertake  to  assume  that  the  citizenship  of  the 
father  as  acquired  in  the  United  States  by  him  was 
conferred  on  his  minor  children,  who  had  remained  in 
the  country  of  his  origin,  and  also  still  continued  to  re- 
main there.  A claim  by  them  for  protection  for  reason 
of  the  citizenship  of  the  father  would  not  be  accorded, 
not  for  reason  of  the  principle  that  they  followed  the 
citizenship  of  the  father,  but  for  reason  of  section  2172 
of  the  Kevised  Statutes. 

A case  in  point  is  that  of  a boy  of  eighteen  years, 
who  has  never  been  out  of  Germany,  but  whose  father 
is  a naturalized  citizen  of  and  resident  in  the  United 
States,  is  not  entitled  to  obtain  the  interposition  of 
this  government  to  secure  bim  from  military  service  in 
Germany,  nor  to  relieve  him  from  being  detained  in 
Germany  for  that  purpose.”  Mr.  Evarts,  secretary  of 
state,  to  Mr.  Caldwell,  March  6,  1880. 

Although  this  exception  is  special  in  its  application 
to  this  case,  and  for  the  reasons  given  protection  was 
properly  refused,  the  boy  being  then  of  the  age  re- 
quired for  performance  of  a special  obligation  to  the 
country  of  his  origin,  the  same  could  have  been 
avoided  had  the  father  taken  him  to  his  own  place  of 


136 


THE  LAW  OF  CITIZENSHIP 


residence  in  the  United  States  when  he  was  of  such 
age  as  to  permit  of  his  departure  from  the  country  of 
his  nativity.  It  does  not  decide  as  fully  as  might  be 
wished  the  question  of  citizenship ; it  only  decides 
that  the  government  of  the  United  States  would  not 
interfere  to  prevent  the  German  government  in  im- 
posing an  obligation  which  was  then  existing,  and 
while  he  still  remained  within  the  jurisdiction  of 
the  German  government. 

The  case  of  Robert  Eindeii  was  this.  He  was 
born  in  Switzerland  in  1862,  and  at  the  time  of  his 
application  to  the  United  States  government  for  pro- 
tection in  1885,  he  had  never  lived  in  the  United 
States. 

His  father,  a Swiss  by  origin,  was  naturalized  in 
New  York  in  1854,  but  soon  afterward  returned  to 
Switzerland,  where  he  continued  afterward  to  reside. 
The  protection  was  denied,  and  the  conclusion  reached, 
that  in  order  to  be  entitled  to  protection,  he  must 
emigrate  to  the  United  States,  and  be  naturalized. 

Undoubtedly  by  the  law  of  nations  an  infant 
child  partakes  of  his  father’s  nationality  and  domicile. 
But  there  are  two  difficulties  in  the  way  of  applying 
this  rule  to  the  present  case.  In  the  first  place, 
a parent’s  nationality  cannot,  especially  when  pro- 
duced by  naturalization,  be  presumed  to  be  adhered  to 
after  a residence  in  the  country  of  origin  for  so  long  a 
period  as  in  the  present  case. 

“ In  the  second  place,  the  rule  as  to  children  only 
applies  to  minors,  since  when  the  child  becomes 
of  age,  he  is  required  to  elect  between  the  country  of 
his  residence  and  the  country  of  his  alleged  technical 


IN  THE  UNITED  STATES. 


137 


allegiance.  Of  this  election,  two  incidents  are  to 
be  observed. 

‘^When  once  made,  it  is  final,  and  it  requires  no 
formal  act,  but  may  be  inferred  from  the  conduct 
of  the  party  from  whom  the  election  is  required.”  F. 
R.  of  U.  S.,  1885,  page  811. 

Although  this  protection  may  be  denied,  and  the 
rule  as  laid  down  guide  the  action  of  the  government 
of  the  United  States,  yet  it  does  not  follow,  because 
the  protection  is  refused  as  in  Emden’s  case,  that  he 
may  not  be  regarded  as  a citizen  of  the  United  States 
by  Switzerland.  The  regulation  which  requires  resi- 
dence in  the  United  States  is  municipal,  and  the 
acquisition  of  citizenship  is  by  municipal  rules  pre- 
scribed by  the  different  states ; notwithstanding  this, 
suppose  that  Switzerland  should  hold  that  Emden  was 
by  descent  a citizen  of  the  United  States,  as  the  son 
of  a citizen  of  the  United  States,  being  born  of  parents 
residing  abroad,  not  under  the  rule  as  laid  down  in 
1802,  but  under  the  international  common  law  rule. 

Reverse  the  rule,  and  suppose  that  a citizen  of  the 
United  States  had  become  a naturalized  citizen  of 
Switzerland,  and  should  then  return  to  the  United 
States,  and  should  there  reside,  and  his  son  should  be 
born  in  the  United  States,  and  always  reside  there 
with  the  father,  the  United  States  would  hold,  under 
the  rule  of  1868,  that  he  was  a child  born  of  a subject 
of  a foreign  power.  This  would  seem  to  be  the  rule 
which  should  govern. 

A son  cannot  be  held  to  perform  the  duties  incum- 
bent on  a father  unfulfilled  before  emigration. 

The  case  was  where  the  son  of  a naturalized  citizen 
18 


138 


THE  LAW  OF  CITIZENSHIP 


of  the  United  States,  who  had  emigrated  from  Spain, 
was  called  upon  to  perform  his  father’s  military  service. 
The  son  was  living  in  Spain,  and  within  the  jurisdic- 
tion of  the  government  of  that  country,  and  the  de- 
mand was  made  upon  him  to  perform  his  father’s  ser- 
vices. 

It  was  held  that : The  son  living  in  Spain,  of  a 
naturalized  citizen  of  the  United  States,  cannot,  con- 
sistently with  the  laws  of  nations,  be  required  by  that 
country  ^ vicariously  ’ to  perform  his  father’s  military 
services.” 

EFFECT  OF  NATURALIZATION  ON  THE  WIFE  OF  THE  APPLI- 
CANT. 

An  alien  migrates  to  the  United  States  from  the 
country  of  his  origin  with  a wife  born  in  the  same 
country  as  is  the  applicant.  He  becomes  a citizen  by 
naturalization,  pursuant  to  the  rules  and  regulations 
therefor  made  and  provided.  This  act  confers  upon 
his  wife  the  same  citizenship  as  that  acquired  by  the 
husband  under  the  laws  of  the  United  States. 

The  same  principle  governs  as  in  case  of  the  minor 
children. 

The  statute,  however,  does  not  declare  that  residence 
of  the  wife  in  the  United  States  is  an  essential  requisite 
to  her  acquisition  of  the  rights  and  privileges  of  a 
citizen. 

It  would  seem  unnecessary  that  any  particular  pro- 
vision should  be  made  to  meet  these  cases,  as  they 
seem  to  be  provided  for  by  implication  under  section 
2172  of  the  Revised  Statutes. 

The  change  is  assumed  to  be  made  in  submission  to 
the  husband’s  paternal  power. 


IN  THE  UNITED  STATES. 


189  • 


DECLARATION  OF  INTENTION  DOES  NOT  CONFER  RIGHTS  OF 
CITIZENSHIP  WITHIN  THE  UNITED  STATES. 

When  the  applicant  has  filed  his  intention  to  be- 
come a citizen  of  the  United  States,  by  this  act  he  has 
not  made  any  change  from  his  former  allegiance ; he 
has  declared  what  he  may  do  at  some  future  date,  pro- 
vided no  objections  are  entered  to  prevent  his  execu- 
tion of  his  purpose  in  the  courts  at  the  final  hearing 
on  his  application.  This  does  not  confer  any  rights ; 
he  remains  subject  to  the  laws  precisely  as  other  resi- 
dents whether  citizens  or  not  within  the  United  States, 
but  cannot  partake  in  the  representation,  or  be  repre- 
sented in  the  lawmaking  branch  of  the  government. 
He  is  not  entitled  to  the  right  of  suffrage,  which  a 
citizen  can  exercise,  and  by  the  exercise  of  which  he 
tacitly  subscribes  to  the  compact  of  government  under 
which  he  lives. 

Although,  in  some  of  the  states,  the  right  of  suffrage 
is  conferred  on  males  of  foreign  birth,  who  have  de- 
clared their  intentions  to  become  citizens  according  to 
the  United  States  naturalization  laws,  as  in  Indiana, 
Wisconsin,  Minnesota,  Kansas,  Missouri,  Arkansas, 
Texas,  Oregon,  Colorado,  Alabama,  Florida  and 
Louisiana,  this  must  be  viewed  as  being  conferred  by 
a mere  municipal  state  regulation,  which  in  itself  is 
dangerous.  Certainly,  it  cannot  be  expected  that  the 
national  government  would  take  any  cognizance  of  this 
fact,  in  passing  upon  the  right  to  protection  when 
abroad  of  such  an  alien  who  would  attempt  to  claim 
protection  because  he  had  declared  his  intent  to  be- 
come a citizen  of  the  United  States,  and  had  exercised 
the  right  of  suffrage  in  some  fixed  locality  within  the 


140 


THE  LAW  OF  CITIZENSHIP 


United  States.  Not  until  the  alien  has  been  finally 
admitted  to  citizenship  is  he  a citizen,  and  such  only 
are  entitled  to  protection  when  abroad.  It  is  doubt- 
ful if  in  these  states,  by  which  this  right  of  suffrage  is 
conferred  upon  such  aliens  as  have  declared  their 
intent  to  become  citizens,  carries  with  it  the  right 
to  represent  citizens  of  these  states  in  the  legislative 
branch  of  the  local  government. 

DECLAKATION  OP  INTENTION  TO  BECOME  A CITIZEN  OF  THE 

UNITED  STATES  DOES  NOT  CONFER  RIGHTS  OF  CITIZEN- 
SHIP WITHOUT  THE  UNITED  STATES. 

An  alien  having  simply  declared  his  purpose  to 
become  a citizen,  and  going  abroad,  does  not  take 
with  him  any  right  to  claim  protection.  He  may 
go  to  the  country  of  his  origin ; going  to  that  country, 
he  simply  returns  as  a subject  of  the  government 
of  that  country,  for  he  has  never  changed  his  allegi- 
ance. 

Declaration  of  intention  to  become  a citizen  does 
not  clothe  the  individual  with  the  nationality  of  this 
country  so  as  to  enable  him  to  return  to  his  native 
land  without  being  subject  to  all  the  laws  thereof. 

The  rule  is  not  upheld  with  the  same  stringency  in 
case  the  applicant  for  citizenship  in  the  United  States 
goes  to  a country  other  than  the  one  of  origin. 

A declaration  of  intention  to  accept  nationality  may 
give  the  declarant  the  quasi  right  to  protection  by  the 
United  States,  as  against  a third  sovereign.  F.  R.  of 
U.  S.,  1884,  p.  552;  F.  R.  of  U.  S.,  1884,  p.  560. 

Under  this  rule,  each  case  must  be  considered  with 
a view  to  two  important  points : 

Does  the  applicant  for  citizenship  depart  after  filing 


IN  THE  UNITED  STATES. 


14:1 


his  declaration  with  the  intent  of  making  his  absence 
of  a temporary  character ; or,  does  the  applicant 
depart  with  the  intent  of  making  his  absence  of  a 
permanent  character,  sine  animo  revertendi  ? 

In  the  first  instance,  the  government  may  remon- 
strate against  any  interference  on  the  part  of  the  govern- 
ment of  his  origin  to  restrain  him  from  perfecting  his 
naturalization.  This  can  only  be  a remonstrance,  and 
not  a demand  as  of  right,  in  the  sense  of  a claim  upon 
him  as  a citizen  of  the  United  States  as  against  a 
claim  of  the  government  of  the  country  of  his  origin, 
for  the  performance  of  existing  duties  and  obligations 
as  a citizen  of  that  country. 

As  against  a third  and  disinterested  government, 
the  claim  can  be  made  as  of  right,  for  that  country 
can  have  no  claim  upon  him  different  from  what  it  has 
on  any  sojourner  within  its  territory. 

In  the  case  of  Koszta.  He  had  declared  his  intention 
to  become  a citizen  of  the  United  States,  and  went 
temporarily  to  the  territory  of  a third  sovereign.  He 
went  to  Turkey,  the  country  of  his  original  allegiance 
being  Austria.  While  in  Turkey  he  was  arrested  by 
Austrian  officials.  He  went  animo  revertendi,  and 
the  government  of  the  United  States  asserted  its  right 
as  against  any  interference  with  him,  in  the  perfection 
of  his  intent  and  purpose  to  become  a citizen  of  the 
United  States. 

In  the  case  of  Burnato.  He  was  a Mexican  by  birth  ; 
came  to  the  United  States;  declared  his  intent  to 
become  a citizen  of  the  United  States ; took  up  his  resi- 
dence in  the  United  States,  and  temporarily  returned 
to  Mexico ; the  Mexican  government  held  him  for 


142 


THE  LAW  OF  CITIZENSHIP 


military  service.  The  interference  of  the  government 
of  the  United  States  released  him. 

This  should  be  taken  as  one  of  those  exceptional 
cases,  which  it  was  possible  to  enforce  as  against 
Mexico,  but  which  has  not  been  as  successfully  en- 
forced against  some  other  countries. 

The  rule  as  laid  down  by  Mr.  Frelinghuysen  as 
above  quoted,  as  among  the  possibilities  that  such 
a claim  can  be  successfully  presented,  but  not  as 
a positive  certainty. 

In  the  second  instance,  the  case  of  Walsh  was  some- 
what different.  Mr.  Walsh  came  to  the  United 
States,  declared  his  intention  to  become  a citizen,  and 
immediately  thereafter  established  himself  in  business 
in  Mexico ; by  so  doing  he  disrupted  his  residence  in  the 
United  States,  and  failed  to  show  an  intent  of  maintain- 
ing a continuous  residence  in  the  United  States. 

It  was  held  that  he  left  the  United  States  sine 
animo  revertendi,  and  protection  was  refused  him. 

In  the  case  of  Abdellah  Saab,  a native  of  Turkey, 
who  had  declared  his  intention  to  become  a citizen  of 
the  United  States,  it  was  held,  that  so  far  as  his 
political  rights  were  concerned,  he  could  have  no 
claim  on  the  government  in  case  of  return  to  his 
native  country.  Mr.  Bayard,  secretary  of  state,  to 
Mr.  Williams,  October  29,  1885  ; Mr.  Bayard,  secretary 
of  state,  to  Mr.  Cain,  January  28,  1886. 

DECLARATION  OF  INTENTION  TO  BECOME  AN  AMERICAN 
CITIZEN  MAY  CONFER  RIGHTS  TO  PROTECTION  IN  SEMI- 
CIVILIZED  COUNTRIES. 

This  rule  proceeds  upon  the  civilized  relations  as 
existing  between  members  of  the  family  of  nations  as 


IN  THE  UNITED  STATES. 


143 


contra-distinguisted  from  the  barbarous  or  less  civih 
ized  world.  It  is  more  for  reason  of  that  general 
protection  which  all  civilized  nations  alike  furnish  to  the 
inhabitants  of  civilized  nations  as  against  barbarians. 

‘‘Although  a mere  declaration  of  intent  does  not 
confer  citizenship,  yet  under  peculiar  circumstances, 
in  a Mohammedan  or  semi-barbarous  land,  it  may 
sustain  an  appeal  to  the  good  oflSces  of  a diplomatic 
representative  of  the  United  States  in  such  land.”  Mr 
Cass,  secretary  of  state,  to  Mr.  De  Leon,  August  18, 
1858. 

The  interference  in  Martin  Koszta’s  case,  proceeded 
in  part  upon  these  grounds.  Mr.  Marcy,  secretary  of 
state,  to  Mr.  Marsh,  August  26,  1853. 

FRAUDULENT  NATURALIZATION. 

The  act  of  naturalization  is  a matter  of  record,  and 
IS  so  made  by  statute.  The  admission  of  the  appli- 
cant to  citizenship  is  a naturalization  judgment  of  the 
court,  and  is  so  recorded.  Spratt  v.  Spratt,  4 Peters, 
393. 

The  record  of  naturalization  is  prima  facie  evidence 
of  the  facts  which  it  recites.  It  is  not,  however,  con- 
clusive. 

In  the  case  of  Moses  Stern,  whose  certificate  of 
naturalization  recited  all  the  facts  required  under  the 
naturalization  laws,  it  was  found  upon  investigation, 
as  a matter  of  fact,  that  he  had  not  resided  uninter- 
ruptedly for  a term  of  five  years  within  the  United 
States. 

Mr.  Stern  was  a native  of  Germany;  had  been 
naturalized  in  the  United  States,  and  returned  to 


144 


THE  LAW  OF  CITIZENSHIP 


Germany.  There  he  claimed  rights,  privileges  and 
immunities,  as  a citizen  of  the  United  States.  His 
claim  was  considered  with  the  above  result,  and  the 
protection  refused.  Mr.  Fish,  secretary  of  state,  to 
Mr.  Wing,  April  6,  1871. 

It  is  very  often  the  case  that  certificates  of  natural- 
ization bear  on  their  face  errors  which  are  fatal ; in 
such  cases,  it  is  within  the  power  of  the  authorities 
who  are  to  consider  the  claim  to  protection  made 
under  them  to  refuse  their  protection. 

The  same  authorities  can  pass  upon  the  question 
whether  or  not  protection  shall  be  accorded  where  the 
certificate  of  naturalization  not  bearing  errors  on  the 
face,  yet  are  traversed,  and  disputed  facts  arise ; they 
must  pass  upon  the  question  and  ascertain  the  correct- 
ness of  the  recitals  before  the  protection  is  extended. 
There  is  no  other  way  by  which  to  prevent  fraud ; for 
the  government  ought  not  to  extend  protection  to 
those  claiming  under  fraudulent  certificates  of  natural- 
ization. Mr.  Fish,  secretary  of  state,  to  Mr.  Moran, 
February  16,  1877.  Mr.  Bayard,  secretary  of  state,  to 
Mr.  Francis,  May  20,  1885. 

THE  RIGHT  TO  PROTECTION  WHEN  WITHIN  THE  UNITED 
STATES,  OF  CITIZENS  OF  THE  UNITED  STATES. 

When  once  admitted  to  citizenship,  whether  by 
descent,  by  naturalization,  or  marriage,  all  citizens  are 
equal  in  the  enjoyment  of  rights,  privileges  and  im- 
munities when  within  the  limits  of  the  United  States. 

THE  RIGHT  OF  EXPATRIATION  AS  APPERTAINING  TO  CIT- 
IZENS OF  THE  UNITED  STATES. 

The  act  of  congress,  adopted  July  27,  1868,  is  self- 
explanatory. 


IN  THE  UNITED  STATES. 


145 


Prior  to  the  passage  of  this  act,  the  right  had  been 
declared  as  an  existing  right  by  the  publicists.  Mr. 
Webster,  secretary  of  state,  to  Mr.  Thompson,  July  8, 
1842,  laid  down  the  rule  as  follows:  ‘‘The  United 
States  have  not  passed  any  law  restraining  their  own 
citizens,  native  or  naturalized,  from  leaving  the  coun- 
try and  forming  political  relations  elsewhere. 

“ Nor  do  other  governments  in  modern  times  at- 
tempt any  such  thing.  It  is  true  that  there  are 
governments  which  assert  the  principle  of  perpetual 
allegiance  ; yet,  even  in  cases  where  this  is  not  rather  a 
matter  of  theory  than  of  practice,  the  duties  of  this 
supposed  continuing  allegiance  are  left  to  be  demanded 
of  the  subject  himself,  when  within  the  reach  of  the 
power  of  his  former  government,  and  as  exigencies 
may  arise,  and  are  not  attempted  to  be  enforced  by 
the  imposition  of  previous  restraint  preventing  men 
from  leaving  their  country.” 

“ The  individual  right  of  expatriation  being  admitted, 
the  correlative  right  of  the  state  to  determine  what 
acts  are  to  be  taken  as  evidence  of  such  expatriation 
necessarily  follows — it  is  a necessary  and  inevitable 
corollary.”  Mr.  Fish,  secretary  of  state,  to  Mr.  Davis, 
June  28,  1875. 

Although  the  right  of  expatriation  was  at  one  time 
denied  in  this  country  (Williams’  case,  Whart.  St.  Tr., 
652),  it  is  now  regarded  as  established  in  international 
law.  Santissima  Trinidad,  7 Wheat.  283 ; Portier  v. 
LeRoy,  1 Yeates  (Penn.),  371;  Jansen  v.  The  Vrow 
Christina  Magdelena,  Bee  Adm.  11,  23;  Talbot  v. 
Jansen,  3 Dali.  383. 

The  United  States  recognize  the  right  of  voluntary 
19 


146 


THE  LAW  OF  CITIZENSHIP 


expatriation,  subject  to  such  limitations  as  congress 
may  impose.  8 Op.  139,  Gushing,  1856. 

A citizen  of  the  United  States,  native  or  naturalized, 
may  change  his  allegiance,  provided  it  be  done  in  time 
of  peace,  and  for  a purpose  not  directly  injurious  to 
the  interests  of  the  country.  9 Op.  69,  Black,  1857. 

The  natural  right  of  every  free  person  who  owes  no 
debts,  and  is  not  guilty  of  any  crime,  to  leave  the 
country  of  his  birth,  in  good  faith  and  for  an  honest 
purpose,  the  privilege  of  throwing  oif  his  natural 
allegiance  and  substituting  another  in  its  place,  the 
general  right,  in  a word,  of  expatriation,  is  incontest- 
able. 9 Op.  356,  Black,  1859. 

The  declaration  in  the  act  of  July  27,  1868,  chapter 
249,  that  the  right  of  expatriation  is  a natural  and 
inherent  right  of  all  people,”  applies  to  citizens  of  the 
United  States  as  well  as  to  those  of  other  countries. 
14  Op.  295,  Williams,  1873. 

The  natural  right  of  every  free  person,  who  owes  no 
debt,  and  is  not  guilty  of  any  crime,  to  leave  the 
country  of  his  birth  in  good  faith  and  for  an  honest 
purpose  — the  privilege  of  throwing  off  his  natural 
allegiance  and  substituting  another  allegiance  in  its 
place — is  incontestable.  Christian  Ernst’s  case,  9 Op. 
356,  Black,  1859. 

Our  knowledge  of  international  law  is  not  taken 
from  the  municipal  code  of  England,  but  from  natural 
reason  and  justice,  from  writers  of  known  wisdom,  and 
from  the  practice  of  civilized  nations ; and  they  are 
all  opposed  to  the  doctrine  of  perpetual  allegiance.  Id. 

In  the  United  States,  ever  since  our  independence, 
we  have  upheld  and  maintained  the  right  of  expatri- 


IN  THE  UNITED  STATES. 


147 


ation  by  every  form  of  words  and  acts,  and  upon  the 
faith  of  the  pledge  which  we  have  given  to  it,  millions 
of  persons  have  staked  their  most  important  interests. 
Id. 

A native  born  citizen  of  the  United  States,  who  has 
been  naturalized  in  a foreign  country,  and  thus  be- 
comes a citizen  or  subject  thereof,  is  to  be  regarded 
as  an  alien ; and  he  cannot  re-acquire  American  nation- 
ality, except  in  conformity  to  laws  of  the  United 
States,  providing  for  the  admission  of  aliens  to  citizen- 
ship therein.  Reply  to  President’s  questions,  14  Op. 
295,  Williams,  1873. 

If  a native  American  can  expatriate  himself,  he 
divests  himself,  by  the  very  act  of  expatriation,  as 
well  of  the  obligations  as  of  the  rights  of  a citizen. 
He  becomes,  ipso  facto,  an  alien ; his  lands  are  escheat- 
able,  and  the  rights  appertaining  to  citizenship,  once 
lost,  cannot  be  recovered  by  residence,  but  he  must  go 
through  the  formula  prescribed  by  law,  for  the  natural- 
ization of  an  alien  born.  The  Santissima  Trinidad,  1 
Brockenbrough,  478. 

Any  citizen  of  the  United  States,  native  or  natural- 
ized, may  remove  from  the  country  and  change  his 
allegiance,  provided  this  be  done  in  time  of  peace,  and 
for  a purpose  not  directly  injurious  to  the  interests  of 
this  government.  Amther’s  case,  9 Op.  62,  Black, 
1857.. 

THE  PRINCIPLE  OF  EXISTING  AND  UNFULFILLED  OBLIGA- 
TIONS. 

In  the  United  States  by  its  local  law,  no  impedi- 
ment is  offered  to  the  exercise  of  the  right  of  expatri- 
ation. There  seem  to  be  no  obligations  arising  from 


148 


THE  LAW  OF  CITIZENSHIP 


fact  of  birth,  nor  for  reason  of  citizenship  which  must 
be  performed  before  the  emigrant  from  the  United 
States  can  lawfully  depart,  the  failure  to  fulfill  which 
obligation  would  entail  upon  the  emigrant  on  return 
to  the  United  States  a punishment.  There  is  no  pre- 
scription by  which  it  is  set  forth  in  what  manner 
the  departure  shall  be  made.  No  permission  is  requi- 
site; no  license  is  granted,  and  no  record  of  depar- 
tures and  returns  is  kept  by  which  to  ascertain  the 
motive  or  the  intent  of  the  emigrant  in  leaving  the 
country. 

THE  MEANING  OF  THE  TERM  “ EXPATRIATION.” 

The  act  of  expatriation  includes  not  only  emigration 
but  also,  naturalization.  Under  this  rule  the  act 
of  departure  in  itself  is  emigration;  if  subsequent 
to  the  departure  the  emigrant  becomes  naturalized  in 
a foreign  country  he  then  expatriates  himself ; thus  by 
expatriation  he  has  lost  his  citizenship  in  the  United 
States.  By  the  simple  act  of  emigration  the  emigrant 
does  not  lose  his  citizenship.  9 Op.  Atty-Genls.  356. 

THE  RIGHT  OF  EXPATRIATION  AS  RECOGNIZED  BY  TREATIES 
BETWEEN  THE  UNITED  STATES  AND  OTHER  COUNTRIES. 

What  are  treaties? 

By  the  law  of  nations  a treaty  is  a mutual  pledge 
of  faith  between  sovereign  powers.  1 Vattel,  Law  of 
Nations,  book  2,  chapter  12. 

It  is  a law  under  the  constitution  of  the  United 
States. 

All  treaties  made,  or  which  shall  be  made  under 
the  authority  of  the  United  States,  should  be  the 
supreme  law  of  the  land.  1 Kent’s  Com.  162. 


IN  THE  UNITED  STATES. 


149 


It  is  made  by  the  president  of  the  United  States, 
provided  two-thirds  of  the  members  of  the  senate 
present  concur. 

A treaty  of  naturalization  between  the  United 
States  and  a foreign  power  does  not  yield  to  an  act  of 
congress.  It  supersedes  existing  statutes  on  the  same 
subject  so  far  as  the  existing  statutes  were  applicable 
to  rights  as  between  the  citizens  of  the  sovereign 
powers  contracting.  Mr.  Fish  to  Mr.  Cushing,  July 
20,  1876,  and  Feb.  13,  1877.,  An  abrogation  of  such  a 
treaty  places  the  statute  existing  prior  to  the  ratifica- 
tion of  the  treaty  again  in  force  as  regards  the  rights 
of  the  citizens  of  the  contracting  parties. 

As  between  foreign  and  independent  sovereign 
powers,  recognized  in  the  family  of  nations,  the  stipu- 
lations in  the  treaties  are  held  to  be  declarations  of  the 
law  of  the  land  which  govern  the  subject-matter  to 
which  the  treaties  refer. 

The  decision  in  Turner  vs.  The  American  Baptist 
Missionary  Union,  that  a treaty  with  Indian  tribes 
has  the  same  dignity  and  effect  as  a treaty  with 
a foreign  power,  being  a treaty  within  the  constitution, 
and  the  supreme  law  of  the  land  is  not  in  point  ; 
no  more  than  is  the  rule  that  a statute  stands  on  equal 
footing  with  a treaty  with  a foreign  power. 

A foreign  government  takes  no  cognizance  of  a 
municipal  statute ; it  adheres  to  the  treaty  which  is 
expressive  of  the  statute,  and  in  most  countries  is 
identical. 

As  between  a statute  and  a treaty  with  an  Indian 
tribe,  one  of  the  wards  of  the  nation,  the  footing  may 
be  the  same,  but  as  between  a statute  and  a foreign 


150 


THE  LAW  OF  CITIZENSHIP 


independent  sovereign  power,  the  footing  is  different. 
In  the  latter  case,  the  principles  of  international  law 
govern  and  the  abrogation  of  the  treaty  is  to  be  by 
the  same  power  by  which  it  was  enacted,  and  is  to  be 
done  by  notice  to  the  other  contracting  party  in 
accordance  with  usage  as  between  sovereign  states. 
The  president  and  two-thirds  of  the  senate  present 
can  abrogate  that  which  it  has  made.  Mr.  Fish, 
secretary  of  state,  to  Mr.  Cushing,  February  13,  1877 

THE  TREATIES  ENTERED  INTO  BETWEEN  THE  UNITED 
STATES  AND  OTHER  FOREIGN  POWERS  ON  NATURALIZA- 
TION AND  EXPATRIATION  WERE  WITH  THE  FOLLOWING 
SOVEREIGN  STATES. 

The  North  German  union,  kingdom  of  Bavaria, 
kingdom  of  Wurtemberg,  grand  duchy  of  Baden, 
duchy  of  Hesse-Darmstadt,  Great  Britain,  kingdom  of 
Belgium,  Austro-Hungarian  monarchy,  kingdom  of 
Denmark,  kingdom  of  Norway  and  Sweden,  republic 
of  Ecuador. 

WHAT  CHANGES  DID  THESE  TREATIES  MAKE  ON  EXISTING 
STATUTES,  IN  THEIR  EFFECT  ON  EXPATRIATION  ? 

The  right  was  one  which  was  acknowledged  and 
recognized  in  the  compact  of  government  by  which 
the  government  was  founded.  So  far  as  the  effect  of 
these  treaties  is  concerned  on  the  rights  of  the  citizens 
of  the  United  States,  they  worked  no  change  in  their 
status  to  the  government.  The  right  to  depart  to  the 
particular  sovereign  states  with  which  the  treaties 
were  made,  existed  prior  to  the  ratification  of  the 
treaties.  The  right  existed  to  depart  to  sovereign 
states  other  than  to  those  with  which  the  treaties 
were  made.  The  right  is  a general  right  and  is  not 


IN  THE  UNITED  STATES. 


151 


limited  in  its  exercise  to  any  sovereign  state  to  the 
exclusion  of  others. 

The  law  is  ‘‘citizens  of  the  United  States  possess 
the  right  of  voluntary  expatriation  subject  to  such 
limitations  in  the  interest  of  the  state  as  the  law  of 
nations  or  the  acts  of  congress  may  impose.”  8 Op. 
Atty-Genls.  139. 

The  rule  in  Anther’s  case  is  as  follows:  “Any 
citizen  of  the  United  States,  native  or  naturalized, 
may  remove  from  the  country  and  change  his  alle- 
giance, provided  this  be  done  in  time  of  peace'  and  for 
a purpose  not  directly  injurious  to  the  interests  of  this 
government.”  9 Op.  Atty-Genls.  62. 

The  act  of  July  27,  1868,  which  was  merely  declara- 
tory of  an  existing  right  and  of  a right  which  was 
exercised,  was  not  changed  by  the  treaties. 

THE  RIGHT  OF  PROTECTION  WHEN  ABROAD  OP  NATURAL- 
IZED CITIZENS  OF  THE  UNITED  STATES. 

An  alien  who  emigrates  to  the  United  States  and 
becomes  a citizen  by  naturalization  is  adjudged  to  be 
a citizen  by  a court  of  record.  Judgment  is  entered 
to  that  effect  after  final  hearing.  The  court  proceeds 
upon  the  presumption  that  the  applicant  makes  his 
application  with  right,  so  far  as  his  relations  and 
status  to  the  country  of  his  origin  are  concerned. 
These  relations  are  not  made  matters  of  inquiry  in  the 
court  in  which  the  application  for  citizenship  is  made ; 
they  are  questions  which  the  laws  of  the  country  of 
the  applicant’s  origin  must  determine.  By  the  treaties 
on  naturalization,  as  ratified  by  and  between  the 
United  States  and  other  sovereign  countries,  certain 


152 


THE  LAW  OF  CITIZENSHIP 


rules  have  been  adopted.  These  rules  do  not  apply  to 
naturalized  citizens  when  abroad  in  countries  other 
than  those  of  their  origin.  In  those  countries  no 
questions  can  arise  of  a like  nature  ; they  are  equally 
entitled  to  protection  with  all  other  citizens  of  the 
United  States. 

In  regard  to  the  protection  of  our  citizens  in  their 
rights  at  home  and  abroad  we  have  in  the  United 
States  no  law  which  divides  them  into  classes  or  makes 
any  difference  whatsoever  between  them.”  9 Op. 
Atty-Genls.  356. 

THE  RULES  AS  LAID  DOWN  WITH  CERTAIN  SOVEREIGN 

STATES. 

The  Rule  Which  Governs  with  the  North  German  Union. 

Article  II.  A naturalized  citizen  of  the  one  party, 
on  return  to  the  territory  of  the  other  party,  remains 
liable  to  trial  and  punishment  for  an  action  punishable 
by  the  laws  of  his  original  country  and  committed 
before  his  emigration  ; saving,  always,  the  limitation 
established  by  the  laws  of  his  original  country. 

The  Rule  Which  Governs  with  Grand  Duchy  op  Baden. 

Article  II.  A naturalized  citizen  of  the  one  party,  on 
return  to  the  territory  of  the  other  party,  remains 
liable  to  trial  and  punishment  for  an  action  punish- 
able by  the  laws  of  his  original  country,  and  committed 
before  his  emigration,  saving,  always,  the  limitation 
established  by  the  laws  of  his  original  country,  or  any 
other  remission  of  liability  to  punishment.  In  partic- 
ular, a former  Badener,  who,  under  the  first  article,  is 
to  be  held  as  an  American  citizen,  is  liable  to  trial  and 


IN  THE  UNITED  STATES. 


153 


punishment  according  to  the  laws  of  Baden,  for  non- 
fulfillment of  military  duty. 

1.  If  he  has  emigrated  after  he,  on  occasion  of  the 
draft  from  those  owing  military  duty,  has  been  en- 
rolled as  a recruit  for  service  in  the  standing  army. 

2.  If  he  has  emigrated  whilst  he  stood  in  service 
under  the  flag,  or  had  a leave  of  absence  only  for 
a limited  time. 

3.  If,  having  a leave  of  absence  for  an  unlimited 
time,  or  belonging  to  the  reserve  or  to  the  militia, 
he  has  emigrated  after  having  received  a call  into 
service,  or  after  a public  proclamation  requiring  his 
appearance,  or  after  war  has  broken  out. 

On  the  other  hand,  a former  Badener,  naturalized 
in  the  United  States,  who,  by  or  after  his  emigration, 
has  transgressed  or  shall  transgress  the  legal  provisions 
on  military  duty  by  any  acts  or  omissions  other  than 
those  above  enumerated  in  the  clauses  numbered  one 
to  three,  can,  on  his  return  to  the  original,  neither  be 
held  subsequently  to  military  service  nor  remain 
liable  to  trial  and  punishment  for  the  non-fulfillment 
of  his  military  duty.  Moreover,  the  attachment  on 
the  property  of  an  emigrant  for  non-fulfillment  of  his 
military  duty,  except  in  the  cases  designated  in  the 
clauses  numbered  one  to  three,  shall  be  removed 
so  soon  as  he  shall  prove  his  naturalization  in  the 
United  States  according  to  the  first  article. 

The  Rule  which  G-overns  with  the  Kingdom  op  Wurtemeerg. 

Article  II.  A naturalized  citizen  of  the  one  party, 
on  return  to  the  territory  of  the  other  party,  remains 
liable  to  trial  and  punishment  for  an  action  punishable 
20 


154 


THE  LAW  OF  CITIZENSHIP 


by  tbe  laws  of  bis  original  country,  and  committed  be- 
fore bis  emigration;  saving,  always,  tbe  limitation 
established  by  tbe  laws  of  bis  original  country,  or  any 
other  remission  of  liability  to  punishment. 

The  Rule  which  Governs  with  the  Grand  Duchy  op  Hesse-Darm- 

STADT. 

Article  II.  A naturalized  citizen  of  tbe  one  party, 
on  return  to  tbe  territory  of  tbe  other  party,  remains 
liable  to  trial  and  punishment  for  an  action  punish- 
able by  tbe  laws  of  bis  original  country,  and  commit- 
ted before  bis  emigration ; saving,  always,  tbe  limita- 
tion established  by  tbe  laws  of  bis  original  country. 

The  Rule  which  Governs  with  the  Kingdom  op  Bavaria. 

Article  II.  A naturalized  citizen  of  tbe  one  party, 
on  return  to  tbe  territory  of  tbe  other  party,  remains 
liable  to  trial  and  punishment  for  an  action  punishable 
by  tbe  laws  of  bis  original  country  and  committed 
before  bis  emigration ; saving,  always,  tbe  limitation 
established  by  tbe  laws  of  bis  original  country  or 
any  other  remission  of  liability  to  punishment. 

The  Rule  which  Governs  with  the  Kingdom  op  Norway  and  Sweden. 

Article  II.  A recognized  citizen  of  tbe  one  party, 
on  returning  to  tbe  territory  of  tbe  other,  remains 
liable  to  trial  and  punishment  for  an  action  punish- 
able by  tbe  laws  of  bis  original  country  and  commit- 
ted before  bis  emigration,  but  not  for  the  emigration 
itself;  saving,  always,  tbe  limitation  established  by 
tbe  laws  of  bis  original  country  and  any  other  remis- 
sion of  liability  to  punishment. 

The  Rule  which  Governs  with  the  Kingdom  op  Denmark. 

Article  II.  If  any  such  citizen  of  tbe  United 


IN  THE  UNITED  STATES. 


155 


States,  as  aforesaid,  naturalized  within  the  kingdom 
of  Denmark  as  a Danish  subject,  should  renew  his 
residence  in  the  United  States,  the  United  States  gov- 
ernment may,  on  his  application,  and  on  such  condi- 
tions as  that  government  may  see  fit  to  impose,  re- 
admit him  to  the  character  and  privileges  of  a citizen 
of  the  United  States,  and  the  Danish  government  shall 
not,  in  that  case,  claim  him  as  a Danish  subject  on 
account  of  his  former  naturalization. 

In  like  manner,  if  any  such  Danish  subject,  as  afore- 
said, naturalized  within  the  United  States  as  a citizen 
thereof,  should  renew  his  residence  within  the  king- 
dom of  Denmark,  his  majesty’s  government  may,  on 
his  application,  and  on  such  conditioDs  as  that  govern- 
ment may  think  fit  to  impose,  readmit  him  to  the 
character  and  privileges  of  a Danish  subject,  and  the 
United  States  government  shall  not,  in  that  case, 
claim  him  as  a citizen  of  the  United  States  on  account 
of  his  former  naturalization. 

The  Rule  which  Governs  with  the  Austro-Hungarian  Monarchy. 

Article  II.  A naturalized  citizen  of  the  one  party, 
on  return  to  the  territory  of  the  other  party,  remains 
liable  to  trial  and  punishment  for  an  action  punish- 
able by  the  laws  of  his  original  country  committed 
before  his  emigration;  saving,  always,  the  limitation 
established  by  the  laws  of  his  original  country  and  any 
other  remission  of  liability  to  punishment. 

In  particular,  a former  citizen  of  the  Austro-Hunga- 
rian monarchy,  who,  under  the  first  article,  is  to 
be  held  as  an  American  citizen,  is  liable  to  trial  and 
punishment,  according  to  the  laws  of  Austro-Hungary, 
for  non-fulfillment  of  military  duty. 


156 


THE  LAW  OF  CITIZENSHIP 


1.  If  he  has  emigrated,  after  having  been  drafted  at 
the  time  of  coDscription  and  thus  having  become 
enrolled  as  a recruit  for  service  in  the  standing  army. 

2.  If  he  has  emigrated  whilst  he  stood  in  service 
under  the  flag,  or  had  a leave  of  absence  only  for  a 
limited  time. 

3.  If,  having  a leave  of  absence  for  an  unlimited 
time,  or  belonging  to  the  reserve  or  to  the  militia,  he 
has  emigrated  after  having  received  a call  into  service, 
or  after  a public  proclamation  requiring  his  appear- 
ance, or  after  war  has  broken  out. 

On  the  other  hand,  a former  citizen  of  the  Austro- 
Hungarian  monarchy  naturalized  in  the  United  States, 
who,  by  or  after  his  emigration  has  transgressed  the 
legal  provisions  on  militaiy  duty  by  any  acts  or  omis- 
sions other  than  those  above  enumerated  in  the  clauses 
numbered  one,  two  and  three,  can,  on  his  return  to 
his  original  country,  neither  be  held  subsequently 
to  military  service  nor  remain  liable  to  trial  and  pun- 
ishment for  the  non-fulflllment  of  his  military  duty. 


The  Rule  which  Governs  with  the  Kingdom  of  Belgium. 

Article  III.  Naturalized  citizens  of  either  contract- 
ing parties,  who  shall  have  resided  five  years  in  the 
country  which  has  naturalized  them,  cannot  be  held  to 
the  obligation  of  military  service  in  their  original 
country,  or  to  incidental  obligation  resulting  there- 
from, in  the  event  of  their  return  to  it,  except  in 
cases  of  desertion  from  organized  and  embodied  mili- 
tary or  naval  service,  or  those  that  may  be  assimilated 
thereto  by  the  laws  of  that  country. 


IN  THE  UNITED  STATES. 


157 


The  Rule  which  Governs  with  the  Republic  of  Ecuador. 

Article  II.  If  a naturalized  citizen  of  either  coun- 
try shall  renew  his  residence  in  that  where  he  was 
born,  without  an  intention  of  returning  to  that  where 
he  was  naturalized,  he  shall  be  held  to  have  reassumed 
the  obligations  of  his  original  citizenship  and  to  have 
renounced  that  which  he  had  obtained  by  natural- 
ization. 

The  rule  which  governs  with  Great  Britain  is  gen- 
eral and  has  no  restrictions. 

COMPARISON  OF  THESE  RULES. 

The  specification  made  in  some  of  these  rules  and 
the  omission  to  specify  in  other  of  the  rules  do  not 
contradict  the  international  common-law^  rule  that 
when  a criminal  or  an  emigrant,  who  has  failed  to 
fulfill  existing  obligations  to  his  government  prior  to 
his  departure,  returns  to  the  country  of  his  origin,  he 
must  perform  them  regardless  of  his  citizenship.  The 
international  common  law  rule  must  govern,  and  is 
applicable  in  all  cases  where  there  has  been  a breach 
of  law  prior  to  the  departure  of  the  emigrant,  to  which 
application  of  the  rule  the  government  of  the  country, 
in  which  the  emigrant  has  become  a naturalized  cit- 
izen, should  not  object  upon  explanation  of  the  existing 
facts  in  the  case. 

COMPARISON  OF  THESE  RULES  WITH  THE  RULES  WHICH 

GOVERNED  WITH  THESE  COUNTRIES  PRIOR  TO  THE  RATI- 
FICATION OF  THE  TREATIES. 

The  general  rule  was  laid  down  by  Attorney-Gen- 
eral Black  in  1859,  as  follows:  ^‘In  regard  to  the 
protection  of  our  citizens  at  home  and  abroad,  we 


158 


THE  LAW  OF  CITIZENSHIP 


have  in  the  United  States  no  law  which  divides  them 
into  classes  or  makes  any  difference  whatever  between 
them.”  9 Op.  Atty-Genls.  356. 

In  the  early  practice  prior  to  the  ratification  of  the 
treaties  of  naturalization,  two  classes  of  cases  arose, 
the  first,  punishment  for  wrongs  committed  by  the 
emigrant  prior  to  his  departure,  and  second,  liability  to 
perform  military  duty  due  and  unperformed  before 
departure. 

Under  the  first  class  was  the  case  of  Henry 
D’Oench.  He  migrated  from  Prussia,  became  a 
naturalized  citizen  of  the  United  States,  returned 
to  the  country  of  his  origin,  and  was  there  held  as 
a fugitive  from  justice  for  reason  of  condemnation  to  a 
punishment  for  violation  of  the  Prussian  law  previous 
to  his  departure.  It  was  held  that  the  change  of 
national  character  subsequent  to  the  alleged  offense 
does  not  release  an  offender  from  penalties  previously 
incurred  when  legally  brought  within  the  jurisdiction 
of  the  country  whose  laws  have  been  violated.  Mr. 
Marcy,  secretary  of  state,  November  16,  1853. 

The  same  rule  was  maintained  as  to  Austria.  ^An 
Austrian  subject  who  commits  an  offense  against 
Austrian  laws,  and  then,  after  becoming  a naturalized 
citizen  of  the  United  States  returns  voluntarily  to  Aus- 
tria, cannot  rightfully  set  up  his  citizenship  in  the 
United  States  as  a bar  to  a prosecution  in  Austria  for 
such  an  offense.”  Mr.  Marcy,  secretary  of  state,  to 
Mr.  Jackson,  April  6,  1855. 

In  a case  with  the  kingdom  of  Hanover,  the  follow- 
ing rule  was  laid  down : “ The  liability  of  a citizen 

of  the  United  States  before  the  courts  of  Hanover, 


IN  THE  UNITED  STATES. 


159 


cannot  depend  upon  the  question  whether  he  is 
a native  or  naturalized  citizen,  but  upon  the  question 
only  whether  he  has  committed  any  offense  against 
Hanoverian  law.  Expatriation  is  no  offense,  and  we 
cannot  permit  an  unreasonable  distinction  to  be  made 
between  different  classes  of  our  citizens.”  Mr.  Cass, 
secretary  of  state,  to  Mr„  Wright,  December  9,  1859. 

Under  the  second,  the  rule  is  laid  down  as  to 
the  duty  to  perform  military  service  as  follows: 
‘^Tbe  Prussian  government  requires  of  all  its  subjects 
a certain  amount  of  military  service.  However  onerous 
this  may  be,  it  is  purely  a matter  of  domestic  policy 
in  which  no  foreign  government  has  a right  to  interfere,” 
Mr.  Everett  to  Mr.  Barnard,  January  14,  1853. 

It  is  well  known  that  most  of  the  German  states 
require  of  their  subjects  a certain  amount  of  military 
service.  If  they  emigrate  before  they  perform  it,  and 
becoming  naturalized  abroad,  return  for  any  purpose 
to  their  native  country,  they  are  still  liable  to  perform 
the  service.  Mr.  Morey,  February  17,  1857. 

In  order  to  entitle  a naturalized  citizen’s  original 
government  to  punish  him  for  an  offense,  this  must 
have  been  committed  whilst  he  was  a subject,  and 
owed  allegiance  to  that  government.  Mr.  Cass,  July  8, 
1859. 

European  governments  have  maintained  that  the 
obligation  to  perform  military  service  devolves  on 
every  subject  as  descendant  from  his  parent,  the  fulfil- 
ment of  which  duty  is  in  the  future,  and  when  the  age 
is  reached  by  the  subject  for  the  performance  of  the 
duty,  the  authorities  make  the  demand  on  the  subject. 
This  demand  once  made  holds  the  subject  until  he  is 


160 


THE  LAW  OF  CITIZENSHIP 


released  therefrom,  which  may  or  may  not  happen, 
the  power  being  discretionary  in  the  government,  and 
*in  individual  cases  it  may  or  may  not  exercise  the 
same.  The  cases  are  few  in  which  the  release  is 
granted,  and  where  property  can  be  found  in  the 
country  which  ma}^  belong  to  the  subject,  or  which 
may  fall  to  the  subject  by  the  laws  of  inheritance, 
the  same  is  sequestered  and  held  by  the  government ; 
or,  in  cases  where  none  such  is  found,  a fine  is  imposed 
by  due  process  of  law  in  favor  of  the  government, 
which  may  be  abated  when  the  subject  is  found  in  the 
country,  and  the  subject  held  for  military  duty  or  at 
times  released  wholly  therefrom  upon  condition  of  his 
departing  from  the  country.  All  of  these  proceedings 
are  matters  of  domestic  concern  with  which  foreign 
governments  have  no  rights  of  interference,  and  yet 
they  have  given  rise  to  much  discussion,  all  of  which 
could  have  been  avoided  had  the  subject  followed  the 
rules  by  which  his  departure  would  have  been  sanc- 
tioned, which  are  to  seek  from  his  government  upon 
application  in  the  prescribed  form  a certificate  of 
emigration. 

The  effect  of  the  certificate  of  emigration  is  to  legal- 
ize the  departure  and  conditionally  release  the  subject 
from  the  performance  of  military  service.  The  release 
is  not  absolute,  the  practice  being  that  an  emigrant 
who,  in  good  faith,  departs  from  his  native  country, 
does  so  for  the  purpose  of  founding  a home  elsewhere, 
not  to  remain  away  temporarily,  or  to  make  use  of  the 
certificate  solely  for  the  purpose  of  avoiding  military 
service,  and  with  the  belief  that  having  so  done  and 
having  clothed  himself  with  a citizenship  in  some 


IN  THE  UNITED  STATES. 


161 


other  country,  he  can  return  and  take  up  his  residence 
in  the  country  of  his  origin,  and  with  impunity  escape 
all  obligatioDS  which  devolve  on  his  former  fellow 
countrymen.  The  intention  is,  and  it  is  the  practice 
that  such  subjects,  who  apply  for  and  obtain  certificates 
of  emigration,  shall  leave  the  country  of  their  origin, 
and  remain  away  unless  return  becomes  necessary  for 
some  temporary  purpose,  but  not  for  residence  if  con- 
tinued for  a longer  period  than  for  two  years. 

There  is  no  duty  to  perform  obligations  which  arise 
after  emigration  as  between  the  United  States  and  the 
countries  with  which  the  treaties  of  naturalization  were 
made. 

A person  having  served  the  required  three  years  in 
the  German  army,  and  being  placed  on  the  reserve  rolls, 
having  emigrated  in  time  of  peace,  when  no  existing 
obligation  to  perform  military  service  existed,  and  hav- 
ing become  naturalized  in  good  faith  after  a residence 
of  five  years  in  the  United  States,  and  who,  although 
temporarily  in  Germany,  intends  in  good  faith  to  re- 
turn and  reside  in  the  United  States,  appears  to  be  se- 
cured by  the  terms  of  the  treaty  from  punishment  for 
a failure  to  perform  military  service  when  the  obliga- 
tion arises  after  emigration.  Mr.  Fish,  July  22,  1875. 

This  rule  gives  rise  to  a question  which  has  not 
been  fully  decided  as  between  the  respective  govern- 
ments. A continuous  obligation,  one  from  which  with- 
out permission  a German  subject  could  not  be  ab- 
solved, would  practically  bar  the  right  of  emigration 
in  this,  that  upon  return  punishment  would  be  visited 
upon  such  an  emigrant.  The  military  service  is  con- 
tinuous up  to  the  forty-fifth  year,  and  the  simple  ser- 
21 


162 


THE  LAW  OF  CITIZENSHIP 


vice  of  three  years  is  not  a fulfilment  of  the  duty, 
should  the  rule  be  enforced.  To  return  temporarily 
would  be  to  place  the  emigrant  in  the  power  of  the 
o-overnment  to  enforce  the  rule.  It  is  the  fulfilment 
of  all  obligations  which  makes  the  departure  secure, 
and  the  compliance  with  existing  regulations,  such  as 
the  obtaining  of  a certificate  of  emigration,  is  the  legal 
method  of  departure. 

The  United  States  justly  maintain  that  obligations 
cannot  be  such  as  cannot  be  absolved  ; to  this  rule  the 
German  government  has  not  fully  subscribed,  although 
great  leniency  has  been  shown  in  some  cases. 

The  German  policy  is  quite  fully  explained  by  the 
following : It  is  impossible  for  this  department  to  say 
in  advance  what  molestation  naturalized  American  citi- 
zens of  German  birth  may  meet  with  from  the  author- 
ities of  Germany,  by  reason  of  questions  arising  as  to 
their  liability  to  military  service  there.  In  case  of 
arrest,  however,  they  may  be  assured  of  all  proper  pro- 
tection from  this  government  and  its  representatives, 
Mr.  Blaine,  April  7,  1881. 

THE  RIGHT  TO  PROTECTION  OP  CITIZENS  OF  THE  UNITED 
STATES  WHEN  ABROAD. 

The  rule,  as  laid  down  by  the  statutes  of  the  United 
States,  draws  no  distinction  between  a citizen  by  de- 
scent and  a citizen  by  naturalization.  This  rule  is  auton- 
omous. The  United  States  cannot  legislate  for  other 
sovereign  states.  It  can,  however,  declare  to  the  world 
its  principles  of  government,  and  the  natural  rights 
which  are  inherent  in  man  all  the  world  over.  The 
exceptions,  if  they  may  be  called  such,  which  the 
United  States  has  been  forced  to  recognize,  as  to  its 


IN  THE  UNITED  STATES, 


163 


naturalized  citizens  upon  return  to  the  country  of  their 
origin,  are  not  in  fact  exceptions. 

In  the  United  States  the  rule  is,  that  all  citizens 
when  in  foreign  countries  are  entitled  to  its  protection. 

When  its  citizens  go  to  foreign  countries,  they  be- 
come subject  to  its  laws,  and  are  amenable  to  its  courts 
of  justice ; while  there  the  government  of  the  United 
States  will  protect  them  against  all  undeserved  indig- 
nities. 

While  in  foreign  countries,  citizens  ot  the  United 
States  may  be  called  upon  to  perform  duties  to  the 
governments  of  these  countries. 

A citizen  of  the  United  States  who  resides  in  a for- 
eign country,  and  there  has  relations  with  the  citizens 
of  that  country,  and  has  interests  which  the  municipal 
regulations  guard  and  protect,  may  be  called  upon  to 
protect  those  interests  in  conjunction  with  the  citizens 
of  that  country,  whose  interests  are  likewise  jeopar- 
dized. 

In  particular  is  this  the  case  when  the  country  is  in- 
vaded by  a foreign  enemy.  This  duty  is  merely  local. 
A citizen  of  the  United  States  can  only  be  called  upon 
to  defend  his  own  interests  and  the  interests  of  others, 
in  the  locality  in  which  the  interests  lie. 

He  cannot  be  called  upon  to  enter  the  army  for  the 
purpose  of  invading  another  country.  Whatever  he 
does  in  this  regard,  he  does  voluntarily.  If  he  enters 
the  army  he  cannot  plead  his  citizenship,  and  ask  the 
government  of  the  United  States  to  free  him  from  the 
obligation  which  he  has  thus  voluntarily  assumed. 


164 


THE  LAW  OF  CITIZENSHIP 


CITIZENS  OF  THE  UNITED  STATES  MAY  DIVEST  THEM- 
SELVES OF  THEIR  CITIZENSHIP  AND  ACQUIRE  CITIZEN- 
SHIP IN  A FOREIGN  COUNTRY. 

When  a citizen  of  the  United  States  surrenders  his 
citizenship  to  the  United  States,  by  application  to  the 
government  of  a foreign  country,  and  pursuant  to  the 
application  is  admitted  to  citizenship  in  that  country, 
the  act  is  his  own  voluntary  act  in  the  exercise  of  the 
right  to  withdraw  from  the  society  of  the  United 
States,  a right  which  he  reserved  to  himself  when  he 
became  a citizen  thereof. 

THE  LAW  OF  A FOREIGN  STATE  CANNOT  IN  ITSELF  CHANGE 
THE  CITIZENSHIP  OF  A CITIZEN  OF  THE  UNITED  STATES 
TEMPORARILY  OR  PERMANENTLY  RESIDING  THEREIN. 

There  is  no  rule  of  international  law  which  takes 
away  from  a citizen  the  right  to  exercise  his  own  free 
will,  as  to  whether  he  will  remain  a citizen  of  the 
country  from  which  he  departd,  or  become  a citizen  of 
the  country  to  which  he  migrates. 

The  republic  of  Venezuela  passed  a law  that  all  per- 
sons visiting  such  state  should  be  regarded  as  citizens 
thereof. 

The  rule  was  applied  to  citizens  of  the  United 
States  sojourning  in  Venezuela. 

The  United  States  took  the  ground  that  the  position 
could  not  be  maintained,  and  the  rule  was  not  applied. 
9 Op.  Atty-Genls.  356. 

LONG  RESIDENCE  IN  FOREIGN  COUNTRIES  BY  CITIZENS  OF 
THE  UNITED  STATES. 

There  is  no  rule  of  law  which  denies  to  citizens  of 
the  United  States  the  right  and  privilege  to  reside  in 
foreign  countries.  It  is  open  to  citizens  to  live  in  all 


IN  THE  UNITED  STATES. 


165 


parts  and  portions  of  tlie  world.  There  must  remain, 
however,  during  the  period  of  domicile  abroad,  some 
tie  of  continued  relation  to  the  government.  This 
necessitates  an  investigation  of  each  particular  case 
when  the  citizen  makes  claim  for  protection.  In  a 
consideration  of  such  cases,  the  rule  must  not  be  lost 
sight  of,  that  the  government  of  the  United  States 
cannot  force  other  sovereign  states  or  the  particular 
sovereign  state,  in  which  the  citizen  of  the  United 
States  who  makes  a claim  for  protection  resides,  to 
accept  its  citizens  as  citizens  of  the  country  in  which 
the  claimant  for  protection  is  domiciled.  The  govern- 
ment must  proceed  upon  the  presumption  that  the  acts 
of  the  claimant  were  of  his  own  intent,  and  if  from  such 
acts  the  government  can  properly  infer  that  the  claim- 
ant by  his  neglect  of  duties  to  the  government  of  the 
United  States  is  not  entitled  to  the  protection  asked 
for,  it  may  be  denied  him. 

But  this  denial  does  not  work  a forfeiture  of  the 
claimant’s  citizenship  as  a citizen  of  the  United  States. 
It  works  as  a punishment  to  him,  for  his  failure  to  per- 
form his  duties  to  his  country.  It  remains  for  him  to 
return  to  the  United  States,  and  re-establish  his  rela- 
tions to  his  government. 

Domicile  in  a country  of  voluntary  asylum  may 
suspend  allegiance  to  the  country  of  birth.”  Caignet  vs. 
Pettit,  2 Dali.  234. 

PAYMENT  OF  TAXES. 

This  is  an  important  and  a controlling  element  in 
many  cases,  which  enters  into  a consideration  of  a 
claim  to  protection  made  by  a citizen  who  has  enjoyed 
a long  residence  in  a foreign  country.  On  this  ground 


166 


THE  LAW  OF  CITIZENSHIP 


protection  may  be  denied  him.  The  failure  to  con- 
tribute to  the  support  of  the  government  and  to  leave 
the  burden  on  those  citizens  who  remain  within  their 
country,  certainly  works  an  injustice  to  those  with 
whom  the  compact  was  made  to  maintain  and  uphold 
the  government  by  the  resident  abroad.  To  shirk  this 
responsibility  and  then  demand  of  those  with  whom 
he  agreed  to  contribute  his  share  towards  the  welfare 
of  the  government  Justifies  those  who  remain  in  the 
United  States  in  denying  protection  to  such  individuals 
who  see  fit  to  maintain  and  enjoy  a domicile  in  a for- 
eign state  for  a long  period  of  time.  Mr.  Fish,  secre- 
tary of  state,  to  Mr.  Hepburn,  December  20,  1870. 

A citizen  of  the  United  States  who  for  thirty-eight 
years  has  resided  in  a foreign  country,  and  has  during 
that  period  in  no  wise  contributed  to  the  support  or 
maintenance  of  his  own  government,  cannot  claim  its 
diplomatic  intervention  in  his  behalf.  Mr.  Fish,  secre- 
tary of  state,  to  Mr.  Niles,  October  30,  1871. 

When  a citizen  of  the  United  States  places  himself 
within  the  Jurisdiction  of  a foreign  government  and 
subjects  himself  and  his  property  to  its  laws,  and  when 
such  citizen  afterwards  seeks  the  interference  of  the 
United  States  to  redress  some  wrong  which  he  may 
have  suffered  at  the  hands  of  such  foreign  government, 
this  government  reserves  to  itself  the  right  of  deter- 
mining not  only  on  the  merits  of  the  particular  claim 
but  also  on  the  claimant’s  right  to  protection.  It  is  for 
this  government  to  say  whether  the  claim  shall  be 
presented  or  not  to  the  foreign  government.  Mr.  Fre- 
linghuysen,  secretary  of  state,  to  Mr.  Lowell,  February 
27,  1884. 


IN  THE  UNITED  STATES, 


167 


A case  in  point  is  that  of  Bagur — resided  in  the 
United  States  from  1852  to  1865,  and  in  1860  became 
a naturalized  citizen.  In  1865  he  returned  to  Spain, 
taking  his  wife  with  him ; his  children  were  born  there, 
and  for  twenty  years  he  continued  his  residence  in 
that  country.  The  fact  that  he  has  never  voted  or 
held  office  in  Spain,  or  taken  part  in  any  political 
demonstration  there  may  show  that  he  is  not  a zealous 
Spaniard,  but  does  not  prove  him  to  have  been  a loyal 
citizen  of  the  United  States.  It  was  held  “ while  there 
is  no  allegation  that  he  intended  to  return  to  the 
United  States,  the  inference  to  the  contrary  is  rendered 
very  strong  by  his  settlement  in  Spain  as  the  place  of 
his  children’s  birth  and  education,  and  by  his  failure 
even  now  to  make  any  effort  to  return.”  Moreover 
there  is  no  evidence  that  he  ever  contributed  by  pay- 
ment of  taxes  or  otherwise  to  the  support  of  this 
government.  The  facts  furnish  a presumption  not  re- 
butted that  he  has  abandoned  his  nationalit}^,  involv- 
ing his  minor  children  in  the  same  abandonment. 
Under  these  circumstances  thus  understood  the  lega- 
tion will  not  accede  to  his  request  for  a passport.  Mr. 
Porter,  acting  secretary  of  state,  to  Mr.  Curry,  January 
4,  1886. 

THE  REVENUE  AND  INCOME  TAX. 

A state  has  the  right  to  levy  a tax  on  its  citizens 
resident  abroad.  The  collection  of  such  a tax  is  diffi- 
cult. The  authorities  of  the  foreign  state  in  which  the 
citizens  reside  cannot  be  called  upon  to  make  the  col- 
lections, nor  is  there  any  power  to  enforce  them. 
This,  however,  does  not  prevent  notice  to  such  citizens 
residing  abroad  that  such  a tax  is  due  and  is  to  be 


168 


THE  LAW  OF  CITIZENSHIP 


paid  by  them  to  tlie  authorities  of  their  country. 
Bluntschli  Voelker  Eecht,  § 376. 

This  levy  of  tax  and  its  non-payment  has  been 
made  an  element  of  importance  in  the  consideration 
of  the  question  whether  protection  should  be  extended 
to  such  citizens  residing  abroad  or  not.  F.  E.  of  U. 
S.,  1871,  p.  888;  Idem,  1875,  pp.  1,  488,  449;  Idem, 
1875,  pp.  1,  479. 

If  found  under  these  rules  that  such  a citizen  resid- 
ing abroad  who  demands  protection  has  not  paid  the 
tax,  it  is  questionable  under  the  international  common 
law  rule,  whether  the  protection  can  be  denied  such 
applicant.  A state  cannot  pass  and  enforce  a law  on 
aliens  making  them  citizens  contrary  to  their  will, 
when  within  the  state,  no  more  can  a state  declare  its 
citizens  to  be  aliens  for  reason  of  failure  to  pay  an  in- 
come tax  when  resident  abroad.  The  rule  is  moral  in 
effect,  not  absolute  as  a matter  of  law.  In  an  emer- 
gency the  protection  should  not  be  denied.  For  it 
must  be  borne  in  mind  that,  as  the  tax  cannot  be  col- 
lected, yet  there  are  citizens  of  other  states  within  the 
United  States  paying  taxes  as  the  American  citizen 
abroad  is  doing  on  property  he  may  have  there,  and 
both  governments  are  in  the  same  predicament  as  to 
collection  from  its  citizens  abroad. 

REBUTTAL  TESTIMONY. 

The  investigation  of  the  claim  of  protection  as  made 
by  a citizen  of  the  United  States  when  abroad,  gives 
to  the  claimant  the  right  to  rebut  the  evidence  which 
may  be  furnished  to  the  government  on  either  the 
question  of  long  continued  domicile  or  non-payment  of 


IN  THE  UNITED  STATES. 


169 


taxes.  Upon  and  after  consideration  of  all  the  facts 
in  the  case  it  remains  for  the  government  of  the  United 
States  to  decide  whether  or  not  it  will  press  the  claim 
for  protection,  as  the  claimant  demands  protection. 
Mr.  Frelinghiiysen  to  Mr.  Lowell,  February  27,  1884. 
Mr.  Fish  to  Mr.  Washburn,  June  28,  1873. 

REFUSAL  TO  EXTEND  PROTECTION  DOES  NOT  INVOLVE 
LOSS  OF  CITIZENSHIP. 

An  applicant  makes  demand  on  his  government  for 
protection.  For  reason  either  of  long  continued  ab- 
sence from  his  country,  for  non-payment  of  taxes  to 
his  government,  for  non-payment  of  revenue  or  income 
tax  to  his  government,  or  for  some  other  reason,  he  is 
placed  in  a position  to  furnish  rebuttal  testimony  on 
which  the  government  to  which  application  for  pro- 
tection is  made  may  Pass  in  order  to  decide  whether 
or  not  protection  shall  be  extended  to  the  applicant. 

The  strongest  rule  laid  down  is  that  by  Attorney- 
General  Black  in  9 Op.  Atty-Genls.  62 : “ There  is 

no  mode  of  renunciation  by  a citizen  of  his  citizenship 
prescribed.  But  if  he  emigrates,  carries  his  family  and 
effects  along  with  him,  manifests  a plain  intention  not 
to  return,  takes  up  his  permanent  residence  abroad,  and 
assumes  the  obligation  of  a subject  to  a foreign  govern- 
ment this  would  imply  a dissolution  of  his  previous 
relations  with  the  United  States.” 

In  other  words  there  must  be  a perfect  act  of  ex- 
patriation which  includes  not  only  emigration  but  also 
naturalization. 

Nothing  short  of  expatriation  can  work  a loss  of 
citizenship.  9 Op.  Atty-Genls.  356. 

Therefore,  unless  the  citizen  has  assumed  the  obliga- 
22 


170 


THE  LAW  OF  CITIZENSHIP 


tion  of  a subject  to  a foreign  government,  be  still  re- 
mains an  American  citizen.  It  is  tbe  act  of  the  citizen 
in  the  exercise  of  his  volition,  expressed  pursuant  to 
the  prescriptions  of  the  naturalization  laws  of  the 
country  in  which  he  resides,  by  which  the  citizenship 
is  abandoned.  It  is  not  the  decree  of  the  government 
by  which  protection  is  refused  to  the  applicant,  even 
if  he  is  unable  to  satisfy  his  government  by  rebuttal 
testimony.  For  example,  in  Bagur’s  case,  which  seems 
to  be  the  leading  case,  after  a residence  of  twenty  years 
in  Spain  it  was  held  that  he  had  abandoned  his 
American  citizenship.  This  ruling  did  not  make  him 
a Spanish  subject.  There  is  no  rule  of  law  in  Spain 
by  which  it  holds  that  the  waifs  of  the  United  States 
become  Spanish  subjects  because  the  United  States 
deny  to  them  passports.  It  works  an  inconvenience 
in  the  applicant  and  may  have  the  effect  to  cause  his 
return  to  the  United  States,  but  not  as  a Spanish  sub- 
ject, and  necessitates  his  naturalization  in  the  United 
States.  No  more  does  it  work  an  abandonment  of 
citizenship  as  to  the  children  of  Bagur  born  in  Spain. 
They  are  children  of  a citizen  of  the  United  States 
born  abroad,  and  remain  such  unless  the  parent  changes 
his  nationality  during  their  minority,  and  this  change 
does  not  deprive  them  of  the  right  of  election  to  re- 
main citizens  of  the  United  States  when  they  reach 
majority. 

NATURALIZED  CITIZENS. 

The  rule  is  somewhat  different  as  to  naturalized  citi- 
zens upon  return  to  the  country  of  their  origin.  There 
are  many  ties  notwithstanding  their  naturalization, 
which  hold  them  to  the  country  of  their  origin ; these 


IN  THE  UNITED  STATES. 


171 


may  be  business  interests,  family  affection  and  relations 
of  patriotism,  any  or  all  of  which  may  enjoin  upon 
them  a return  to  the  country  of  their  origin  from  time 
to  time,  and  for  a temporary  or  permanent  purpose. 

It  was  early  laid  down  as  a rule,  that  it  can  admit 
of  no  doubt  that  the  naturalization  laws  of  the  United 
States  contemplate  the  residence  in  the  country  of 
naturalized  citizens,  unless  they  shall  go  abroad  in  the 
public  service  or  for  temporary  purposes.” 

The  Case  of  Land  an.  He  was  naturalized  in  the 
United  States  in  1854,  he  went  to  the  Levant  in  1857 ; 
he  retired  to  Vienna  in  1868,  and  during  the  whole  of 
this  period  he  was  absent  from  the  United  States,  and 
continued  the  same  until  1886,  when  he  demanded 
protection  from  the  government  of  the  United  States. 

It  was  held  that  Landan  had  evaded  his  duties  of 
citizenship  by  his  non-residence,  and  none  of  them  had 
ever  been  performed  by  him.  The  protection  was  re- 
fused. Mr.  Bayard  to  Mr.  Lee,  July  24,  1886. 

The  Case  of  Cranz.  He  was  born  in  Hamburg, 
Germany,  of  Austrian  parents ; emigrated  to  the  United 
States ; was  naturalized  in  1882,  left  the  United  States 
in  1883,  with  no  intention  to  return  to  the  United 
States  to  reside ; is  now  a resident  of  Belgium,  and 
claims  protection.  It  was  held  that  he  having  no  in- 
tention to  return  to  this  country  to  reside,  and  take 
upon  himself  the  duties  and  obligations  of  a citizen  of 
the  United  States,  that  protection  must  be  denied  him. 
Mr.  Bayard  to  Mr.  Tree,  April  9,  1886. 

‘‘Voluntary  expatriation  by  a naturalized  citizen, 
which  forfeits  a right  to  diplomatic  intervention,  may 
be  inferred  from  a long  residence  abroad  in  the  place 


172 


THE  LAW  OF  CITIZENSHIP 


of  his  birth,  by  non-payment  of  taxes  and  non-possession 
of  property  in  this  country,  and  by  failure  to  express 
any  intention  to  return.”  Mr.  Frelinghuysen  to  Mr. 
Lowell,  February  27,  1884. 

NATURALIZED  CITIZENS  UNDER  THE  TREATIES  — THE 
RULES  UNDER  THE  TREATIES. 

With  the  Grand  Duchy  op  Hesse-Darmstadt. 

Article  IV.  If  a Hessian,  naturalized  in  America, 
but  originally  a citizen  of  the  parts  of  the  Grand 
Duchy  not  included  in  the  North  German  confedera- 
tion, I’enews  his  residence  in  those  parts  without  the 
intent  to  return  to  America,  he  shall  be  held  to  have 
renounced  his  naturalization  in  the  United  States. 
Reciprocally,  if  an  American,  naturalized  in  the 
Grand  Duchy  of  Hesse  (within  the  above  described 
parts),  renews  his  residence  in  the  United  States  with- 
out the  intent  to  return  to  Hesse,  he  shall  be  held  to 
have  renounced  his  naturalization  in  the  Grand  Duchy. 

The  intent  not  to  return  may  be  held  to  exist,  when 
the  person  naturalized  in  the  one  country  resides  more 
than  two  years  in  the  other  country. 

With  the  Kingdom  op  Wurtemberg. 

Article  IV.  If  a Wurtemberger,  naturalized  in  Amer- 
ica, renews  his  residence  in  Wurtemberg  without  the  in- 
tent to  return  to  America,  he  shall  be  held  to  have  re 
nounced  his  naturalization  in  the  United  States.  Re- 
ciprocally, if  an  American  naturalized  in  Wurtemberg, 
renews  his  residence  in  the  United  States,  without  the 
intent  to  return  to  Wurtemberg,  he  shall  be  held  to 
have  renounced  his  naturalization  in  Wurtemberg. 
The  intent  not  to  return  may  be  held  to  exist  when 


IN  THE  UNITED  STATES. 


173 


the  person  naturalized  in  the  one  country  resides  more 
than  two  years  in  the  other  country. 

With  the  Grand  Duchy  op  Baden. 

x\rticle  IV.  The  emigrant  from  -the  one  state  who, 
according  to  the  first  article,  is  to  be  held  as  a citizen 
of  the  other  state,  shall  not  on  his  return  to  his  origi- 
nal country  be  constrained  to  resume  his  former  citizen- 
ship; yet  if  he  shall  of  his  own  accord  re-acquire 
it  and  renounce  the  citizenship  obtained  by  natural- 
ization, such  a renunciation  is  allowed,  and  no  fixed 
period  of  residence  shall  be  required  for  the  recognition 
of  his  recovery  of  citizenship  in  his  original  country. 

With  the  North  German  Union. 

Article  IV.  If  a German  naturalized  in  America  re- 
news his  residence  in  North  Germany,  without  the 
intent  to  return  to  America,  he  shall  be  held  to  have 
renounced  his  naturalization  in  the  United  States, 
Reciprocally,  if  an  American  naturalized  in  North 
Germany  renews  his  residence  in  the  United  States, 
without  the  intent  to  return  to  North  Germany,  he 
shall  be  held  to  have  renounced  his  naturalization  in 
North  Germany. 

The  intent  not  to  return  may  be  held  to  exist  when 
the  person  naturalized  in  the  one  country  resides  more 
than  two  years  in  the  other  country. 

With  the  Kingdom  of  Bavaria. 

Article  IV.  If  a Bavarian,  naturalized  in  America, 
renews  his  residence  in  Bavaria,  without  the  intent  to 
return  to  America,  he  shall  be  held  to  have  renounced 
his  naturalization  in  the  United  States.  Reciprocally, 


174 


THE  LAW  OF  CITIZENSHIP 


if  an  American,  naturalized  in  Bavaria,  renews  his  resi- 
dence in  the  United  States,  without  the  intent  to  return 
to  Bavaria,  he  shall  be  held  to  have  renounced  his 
naturalization  in  Bavaria. 

The  intent  not  to  return  may  be  held  to  exist  when 
the  person  naturalized  in  the  one  country  resides  more 
than  two  years  in  the  other  country. 


With  Nokwat  and  Sweden. 

Article  III.  If  a citizen  of  the  one  party,  who  has 
become  a recognized  citizen  of  the  other  party,  takes 
up  his  abode  once  more  in  his  original  country  and 
applies  to  be  restored  to  his  former  citizenship,  the 
government  of  the  last-named  country  is  authorized  to 
receive  him  again  as  a citizen,  on  such  conditions  as 
the  said  government  may  think  proper. 

With  the  Kingdom  op  Denmark. 

Article  III.  If,  however,  a citizen  of  the  United 
States,  naturalized  in  Denmark,  shall  renew  his  resi- 
dence in  the  former  country  without  the  intent  to 
return  to  that  in  which  he  was  naturalized,  he  shall 
be  held  to  have  renounced  his  naturalization. 

In  like  manner  if  a Dane,  naturalized  in  the  United 
States,  shall  renew  his  residence  in  Denmark  without 
the  intent  to  return  to  the  former  country,  he  shall  be 
held  to  have  renounced  his  naturalization  in  the  United 
States. 

The  intent  not  to  return  may  be  held  to  exist  when 
a person  naturalized  in  the  one  country  shall  reside 
more  than  two  years  in  the  other  country. 


IN  THE  UNITED  STATES. 


175 


With  the  Austro-Hungarian  Monarchy. 

Article  IV.  The  emigrant  from  the  one  state,  who, 
according  to  article  1,  is  to  be  held  as  a citizen  of  the 
other  state,  shall  not,  on  his  return  to  his  original  coun- 
try, be  constrained  to  resume  his  former  citizenship, 
yet  if  he  shall  of  his  own  accord  re-acquire  it,  and  re- 
nounce the  citizenship  obtained  by  naturalization,  such 
a renunciation  is  allowable,  and  no  fixed  period  of  resi- 
dence shall  be  required  for  the  recognition  of  his  re- 
covery of  citizenship  in  his  original  country. 

With  the  Kingdom  of  Belgium. 

Article  IV.  Citizens  of  the  United  States  naturalized 
in  Belgium  shall  be  considered  by  Belgium  as  citizens 
of  the  United  States  when  .they  shall  have  recovered 
their  character  as  citizens  of  the  United  States  accord- 
ing to  the  laws  of  the  United  States.  Reciprocally, 
Belgians  naturalized  in  the  United  States  shall  be  con- 
sidered as  Belgians  by  the  United  States  when  they 
shall  have  recovered  their  character  as  Belgians  accord- 
ing to  the  laws  of  Belgium. 

With  the  Republic  of  Ecuador, 

Article  II.  If  a naturalized  citizen  of  either  country 
shall  renew  his  residence  in  that  where  he  was  born, 
without  an  intention  of  returning  to  that  where  he  was 
naturalized,  he  shall  be  held  to  have  re-assumed  the 
obligations  of  his  original  citizenship,  and  to  have  re- 
nounced that  which  he  had  obtained  by  naturalization. 

Article  III.  A residence  of  more  than  two  years  in 
the  native  country  of  a naturalized  citizen  shall  be  con- 
strued as  an  intention  on  his  part  to  stay  there  without 
returning  to  that  where  he  was  naturalized.  This  pre- 


176 


THE  LAW  OF  CITIZENSHIP 


sumption,  however,  may  be  rebutted  by  evidence  to  the 
contrary. 

COMPARISON  OF  THESE  RULES. 

The  rules  fall  into  three  distinctive  groups.  The 
rule  made  with  the  North  German  Union,  Hesse-Darm- 
stadt,  Wurtemberg,  Bavaria,  Denmark  and  Norway  and 
Sweden  is  to  the  point,  that  the  return  of  a naturalized 
citizen  of  the  United  States,  who  was  a native  of  any 
' of  these  states,  to  the  country  of  his  nativity  without 
the  intent  to  return  to  the  United  States,  shall  be  con- 
strued as  a renunciation  of  citizenship  in  the  United 
States.  The  intent  not  to  return  may  be  held  to  exist 
when  the  person  naturalized  in  the  United  States  re- 
sides more  than  two  years  in  the  country  of  his  birth. 

The  rule  made  with  the  Grand  Duchy  of  Baden, 
Belgium,  Austro-Hungarian  monarchy  and  Great  Brit- 
ain is  to  the  point  that  the  return  of  a naturalized 
citizen  of  the  United  States  to  the  country  of  his 
nativity  shall  not  be  construed  as  a renunciation  of 
citizenship  in  the  United  States.  The  exercise  of  the 
citizen’s  own  volition  is  essential  to  work  a change  of 
citizenship. 

The  rule  made  with  the  republic  of  Equador  is  to 
the  point  that  the  return  of  a naturalized  citizen  of  the 
United  States  to  the  country  of  his  nativity  shall  be 
presumed  as  a renunciation  of  citizenship  in  the  United 
States  after  a residence  of  two  years.  This  presump- 
tion, however,  may  be  rebutted  by  evidence  to  the  con- 
trary. 

Under  these  rules,  naturalized  citizens  return  to  the 
country  of  their  nativity  respectively  under  different 
conditions. 


IN  THE  UNITED  STATES. 


177 


These  rules  are  reciprocal,  and  affect  citizens  of  the 
United  States  who  have  become  naturalized  in  these 
respective  countries  and  being  treaties  are  the  supreme 
law  of  the  land. 

THE  RULES  AS  THEY  AFFECT  CITIZENS  OF  THE  UNITED 

STATES  NATURALIZED  IN  THESE  COUNTRIES  UPON  RE- 
TURN TO  THE  UNITED  STATES. 

Under  the  rule  as  laid  down  for  the  first  group  of 
states,  the  presumption  is  absolute.  For  example  : A 
citizen  of  the  United  States  becomes  naturalized  in  the 
North  German  Union  ; after  naturalization  he  remains 
in  that  country  for  a long  period  of  time  and  then  re- 
turns to  the  United  States.  After  a two  years’  resi- 
dence in  the  United  States  he  may  be  presumed  to 
have  renounced  his  citizenship  to  the  North  German 
Union  and  be  held  as  a citizen  of  the  United  States. 

Under  the  rule  as  laid  down  for  the  second  group 
of  states  there  is  no  presumption.  For  example : A 
citizen  of  the  United  States  becomes  a naturalized 
citizen  of  Great  Britain ; after  naturalization  he  re- 
mains in  that  country  for  a long  period  of  time  and 
then  returns  to  the  United  States.  No  length  of  time 
for  residence  in  the  United  States  works  a presump- 
tion of  his  renunciation  of  his  English  citizenship.  In 
order  to  become  a citizen  of  the  United  States  he  must 
comply  with  the  naturalization  laws  precisely  as 
though  he  had  never  been  a citizen  of  the  United 
States. 

Under  the  rule  as  laid  down  for  the  third  group  of 
states  a presumption  is  raised,  but  rebuttal  evidence  to 
the  contrary  can  be  offered  against  the  presumption. 

For  example : A citizen  of  the  United  States  becomes 
23 


178 


THE  LAW  OF  CITIZENSHIP 


a citizen  of  the  republic  of  Equador ; after  naturaliza- 
tion he  remains  in  that  country  for  a long  period  of 
time  and  then  returns  to  the  United  States.  After  a 
two  years’  residence  in  the  United  States,  he  may  be 
presumed  to  have  renounced  his  citizenship  to  the  re- 
public of  Equador ; he  cannot,  however,  be  held  as  a 
citizen  of  the  United  States,  until  hearing  had  and 
rebuttal  evidence  is  submitted  by  him  to  show  that  he 
has  no  intent  of  abandoning  his  citizenship  to  the  re- 
public of  Equador. 

The  rule  as  laid  down  in  the  United  States  is  to  the 
point  that  “ a native  born  citizen  of  the  United  States 
who  has  been  naturalized  in  a foreign  country  and  has 
become  a citizen  thereof  is  to  be  regarded  as  an  alien, 
and  in  order  to  re-acquire  his  original  nationality  he 
must  conform  to  the  laws  of  the  United  States  provid- 
ing for  the  admission  of  aliens  to  citizenship.”  14  Op. 
Atty.-Genls.  295. 

There  is  no  other  construction  to  be  placed  upon  the 
rule  as  agreed  to  with  the  first  group  of  states.  No  pro- 
vision is  made  by  which  the  presumption  can  be  re- 
butted, nor  is  it  implied.  To  take  away  the  right  of 
expression  of  intent  as  to  a change  of  citizenship  finds 
neither  precedent  in  the  practice  of  the  United  States, 
nor  is  it  in  accord  with  the  spirit  of  the  laws  as  passed 
from  time  to  time  by  the  congress  of  the  United  States. 
Why  this  privilege  should  be  denied  is  without  reason. 
The  rule  carries  within  it  a contradiction  of  the  con- 
stitution and  the  laws  ; as  a law  of  the  land  it  is  uncon- 
stitutional. 

The  rules  which  govern  with  the  second  and  third 
groups  of  states  are  both  constitutional.  With  the 


IN  THE  UNITED  STATES. 


179 


second  group,  the  rule  is  in  accordance  with  the  opin- 
ion above  quoted.  With  the  third  group  in  case  the 
presumption  is  raised,  it  can  be  met  by  evidence  to  the 
contrary.  It  does  not  deprive  the  returning  naturalized 
citizen  of  the  privilege  to  make  his  defense.  If,  there- 
fore, he  sees  fit  to  change  his  citizenship,  he  must  do  so 
in  accordance  with  the  naturalization  laws  of  the  land. 

Why  there  should  be  such  a contradiction  and  such 
a lack  of  uniformity  in  these  rules  is  inexplicable  from 
the  standpoint  of  the  spirit  of  the  Jurisprudence  of  the 
country  which  governs  these  questions. 

THE  RULES  AS  THEY  AFFECT  NATURALIZED  CITIZENS  OP 

THE  UNITED  STATES  UPON  RETURN  TO  THE  COUNTRY 

OF  ORIGIN. 

The  rule  which  governs,  and  was  agreed  to  with  the 
first  group  of  states  by  the  government  of  the  United 
States,  should  not  admit  of  a dual  construction,  one  for 
the  convenience  of  the  United  States,  and  one  for  the 
convenience  of  any  of  the  governments  of  the  countries 
with  which  the  treaties  were  made. 

The  treaty  was  ratified  for  two  purposes  : The  first, 
on  the  part  of  the  government  of  the  United  States  to 
prevent  abuses  of  the  privileges  of  citizenship  by 
naturalized  citizens  who  sought  to  make  it  a convenience 
by  which  to  avoid  duties  and  obligations  to  the  country 
of  their  origin,  and  to  practically  enforce  the  rule,  that 
the  naturalization  laws  of  the  United  States  contem- 
plate the  residence  in  the  country  of  naturalized  citizens 
unless  they  shall  go  abroad  in  the  public  service  or  for 
temporary  purposes.” 

The  second,  on  the  part  of  these  governments  referred 
to  in  the  first  group,  to  prevent  the  return  of  their 


180 


THE  LAW  OF  CITIZENSHIP 


former  subjects  who  sought  citizenship  in  the  United 
States  and  disavowed  their  allegiance  to  the  countries 
of  their  origin  for  political  reasons,  thereby  evading 
the  continuing  obligations  which  devolve  upon  their 
subjects  who  remain.  These  obligations  were  municipal 
regulations  which  were  made  for  the  protection  and 
good  of  the  country.  If  the  obligations  were  obnox- 
ious to  some  of  the  subjects  and  they  departed  for  that 
reason,  and  became  naturalized  citizens  of  the  United 
States,  certainly  it  was  proper  for  the  government  to 
stipulate  the  grounds  on  which  they  could  return. 
For  the  reason  that  they  had  become  naturalized  citi- 
zens of  the  United  States,  to  allow  them  by  such  an 
act  to  take  up  a permanent  abode  among  the  subjects 
with  whom  they  formerly  lived  and  evade  obligations 
and  duties  and  enjoy  the  immunities  which  work  an 
injustice  to  a friendly  government..  To  prevent  this 
after  a residence  for  a fixed  period  a stipulation  was 
made  in  accordance  with  their  own  views,  and  in 
contemplation  of  the  rule  expressed  in  the  United 
States  that  the  naturalized  citizens  of  the  United 
States  were  to  remain  within  the  United  States  and 
go  abroad  for  temporary  purposes  only.  By  the  treaty 
two  years  was  considered  sufficient  sojourn  for  a tem- 
porary purpose. 

THE  WHEATON  RULE. 

In  1840,  Mr.  Wheaton,  then  United  States  minister 
at  Berlin,  commented  on  the  case  of  Johann  P.  Knocke 
as  follows : “ I have  received  your  application  stating 

that  you  are  a native  born  subject  of  his  majesty,  the 
king  of  Prussia;  that  you  emigrated  to  the  United 
States  in  the  year  1834,  being  then  twenty-one  years 


IN  THE  UNITED  STATES. 


181 


old,  when  you  became  naturalized  as  a citizen ; that 
you  have  since  returned  to  your  native  country  where 
you  have  been  required  to  perform  military  duty,  and 
desiring  my  official  interference  for  your  relief. 

“ In  reply  I have  to  state  that  it  is  not  in  my  power 
to  interfere  in  the  manner  you  desire.  Had  you  re- 
mained in  the  United  States,  or  visited  any  other  for- 
eign country  except  Prussia,  on  your  lawful  business, 
you  would  have  been  protected  by  the  American  au- 
thorities at  home  and  abroad,  in  the  enjoyment  of  all 
your  rights  and  privileges  as  a naturalized  citizen  of  the 
United  States.  But  having  returned  to  the  country  of 
your  birth,  your  native  domicile  and  natural  character 
revert,  so  long  as  you  remain  in  the  Prussian  dominions, 
and  you  are  bound  in  all  respects  to  obey  the  laws  ex- 
actly as  if  you  had  never  emigrated.” 

THE  ERROR  OF  THE  WHEATON  RULE  AS  LAID  DOWN  AND 

FOLLOWED  AS  THE  POLICY  OF  THE  UNITED  STATES  WITH 

PRUSSIA. 

The  error  of  the  Wheaton  rule  is  found  first,  in  the 
theory  that  the  common  law  of  England  was  accepted 
by  the  people  of  the  United  States,  for  structural  use 
in  the  organization  of  their  government ; and  second, 
in  the  belief  that  the  principles  of  the  feudal  law  gov- 
erned in  the  organization  of  the  form  of  government 
of  Prussia. 

The  first  has  been  sufficiently  discussed  heretofore. 

The  second  is  satisfactorily  proved  to  be  an  error 
by  consulting  the  constitution  of  the  Germanic  con- 
federation of  1842,  in  which  the  admission  of  mem- 
bers of  one  state  as  members  in  another  state  is 
recognized ; it  is  true  that  this  may  be  considered  in 


182 


THE  LAW  OF  CITIZENSHIP 


one  sense  to  be  a local  rule,  somewhat  similar  to  a 
municipal  law  for  the  confederation ; yet  it  takes  up 
the  principle  recognizing  the  right  of  a citizen  to 
change  his  citizenship  to  that  of  another  state.  The 
principle  of  acquisition  of  citizenship  by  descent  was 
likewise  laid  down  in  the  same  constitution.  On  the 
question  of  expatriation,  a certificate  of  emigration  was 
a prerequisite,  which  could  not  be  granted  to  male  citi- 
zens between  tne  ages  of  seventeen  and  twenty-five  un- 
less they  had  a discharge  from  service  in  the  army. 
During  these  years  service  in  the  army  was  held  to  be 
an  existing  obligation.  While  under  the  age  of  seven- 
teen the  obligation  was  prospective,  and  after  the  age 
of  twenty-five  the  obligation  was  held  to  be  continu- 
ing in  its  nature  on  general  principles  that  the  citizens 
should  be  ready  on  call  to  re-enter  the  army  in  case 
the  country  needed  the  services. 

By  the  constitution  of  Prussia  of  1850,  article  1,  it 
is  declared  ‘^The  right  to  emigrate  cannot  be  restricted 
by  the  state  except  with  respect  to  the  duty  of  mili- 
tary service.’^ 

When  Mr.  Wheaton  laid  down  the  Wheaton  rule  as 
the  law  for  subjects  of  Germany,  naturalized  in  the 
United  States,  and  Baron  Manteufl'el  expressed  the 
rule  that  the  United  States  should  inquire  into  the 
right  of  a German  subject  to  emigrate  before  he  was 
admitted  to  naturalization,  the  principles  of  the  Code 
Napoleon  recognizing  the  natural  rights  of  man,  was 
the  common  law  in  the  Bhenish  provinces,  and  in 
Westphalia,  which  constitute  a large  portion  of  the 
Prussian  territory.  The  doctrine  as  laid  down  by  Mr. 
Wheaton  was  anticipated  as  being  that  of  Prussia, 


IN  THE  UNITED  STATES. 


188 


whicli  at  that  time  had  no  fixed  foreign  policy,  except 
that  as  had  always  been  known  to  the  international 
law  of  Europe,  that  only  existing  obligations  at  the 
date  of  emigration  could  be  enforced,  if  not  fulfilled 
before  the  departure  of  the  emigrant.  Prussia  took  ad- 
vantage of  this  anticipation  of  Mr.  Wheaton,  and  in 
the  case  of  Knocke  it  so  happened  that  the  Prussian 
government  was  in  a position  to  do  so,  owing  to  the 
age  of  Knocke  when  he  departed,  as  being  between  the 
ages  of  seventeen  and  twenty-five;  Knocke  being 
twenty-one,  when  the  obligation  is  recognized  to  be 
neither  prospective,  nor  continuing,  but  existing.  The 
right  of  Prussia  to  hold  Knocke  was  undisputed ; it 
did  not,  however,  warrant  Mr.  Wheaton  to  declare  the 
rule  which  he  did,  as  being  the  law  of  the  United 
States. 

There  was  still  another  principle  which  would  seem 
to  have  influenced  Mr.  Wheaton  when  he  laid  down 
the  rule  which  has  been  cited. 

At  that  time  the  judicial  opinions  in  the  United 
States  proceeded  upon  a false  presumption  that  the 
common  law  of  England  had  a structural  influence  on 
the  government  of  the  United  States.  Very  few  cases 
had  arisen  in  which  aliens  naturalized  in  the  United 
States,  returned  to  their  original  countries,  and  the 
dicta  in  these  opinions  were  of  great  moment  to  him  in 
his  consideration  of  the  subject. 

Others  who  followed  in  the  same  line  of  thought 
found  a further  reason  in  the  principle  advocated  in 
England  in  regard  to  the  extent  to  which  protection 
should  be  extended  to  naturalized  citizens.  By  stat- 
ute passed  in  1851,  the  English  government  extended 


184 


THE  LAW  OF  CITIZENSHIP 


no  protection  to  its  naturalized  subjects  when  in  their 
original  countries ; when  there  the  statute  implies,  as 
is  laid  down  in  the  Wheaton  rule  “ having  returned  to 
the  country  of  birth,  native  domicile  and  natural 
character  revert,”  and  this  rule  was  followed  Vjy 
Mr.  Wheaton’s  successors  as  the  rule  which  should 
govern  Prussians  naturalized  in  the  United  States 
upon  return  to  Prussia.  Why  this  rule  was  not 
applied  to  other  countries  in  similar  cases  can  only  be 
solved  by  defective  diplomacy.  And  yet  this  rule  be- 
came so  forcibly  impressed  on  the  government  of  the 
United  States  that  it  passed  in  1886  a statute  afford- 
ing equal  protection  to  all  citizens  of  the  United 
States  when  abroad.  For  what  reason  ? may  prop- 
erly be  asked.  It  could  only  have  been  intended  as  a 
declaration  against  the  German  states,  with  which 
states  a treaty  was  in  force,  which  furnished  a legal 
method  by  which  to  upset  its  practical  effect. 

THE  BARNARD  RULE. 

In  1851,  Mr.  Barnard  commented  on  the  case  of  H. 
V.  de  Sandt,  as  follows : “ The  facts  being  that  Sandt 
was  born  in  Prussia;  had  emigrated  to  the  United 
States  ; had  there  declared  his  intent  to  become  a 
citizen ; and  then  returned  to  Prussia. 

“ When  you  ceased  to  be  a citizen  of  Prussia  by 
your  permit  of  emigration,  and  became  a resident  in 
the  United  States,  the  laws  and  government  of  that 
country  became  your  protection  as  long  as  that  resi- 
dence continued.  When,  however,  you  quitted  your 
residence  there,  before  perfecting  your  naturalization, 
and  again  took  up  your  abode  in  Prussia  for  your  own 


IN  THE  UNITED  STATES. 


185 


purposes,  your  position  was  a peculiar  one  and  required 
from  you  a peculiar  and  very  discreet  line  of  conduct. 
It  was  impossible  for  the  American  legation  here  to 
claim  you  as  an  American  citizen.” 

In  1852,  Mr.  Barnard  commented  on  the  case  of  Dr. 
Gutowski,  as  follows,  the  facts  being  that  he  was 
born  in  Prussia,  naturalized  in  the  United  States  and 
returned  to  Prussia  : Having  voluntarily  returned  to 
the  country  of  your  birth  where  you  have  purchased 
a farm  and  taken  up  your  residence,  the  Prussian 
government  has  a right  to  regard  you  as  its  subject 
and  so  treat  you  in  all  respects.” 

In  the  case  of  B.  Meyer,  the  facts  were  as  follows  ; 
Meyer  was  born  in  Prussia  ; emigrated  to  the  United 
States ; became  a naturalized  citizen ; returned  to 
Prussia ; was  arrested  for  non-fulfillment  of  military 
duty  and  fined,  without  the  intervention  of  the  govern- 
ment of  the  United  States. 

In  1852,  Mr.  Barnard  received  instructions  from 
Mr.  Everett,  secretary  of  state,  in  the  case  of  Johann 
Josef  Kanke,  on  the  following  facts  : Born  in  Prussia ; 
emigrated  without  permission ; naturalized  in  the 
United  States ; returned  to  Prussia,  and  was  sentenced 
to  a service  of  three  years  in  the  Prussian  army. 

That  lying  under  a legal  obligation  in  Prussia  to 
perform  a certain  amount  of  military  service,  he  leaves 
his  native  land  and  without  performing  that  duty  or 
obtaining  the  prescribed  certificate  of  emigration, 
comes  to  the  United  States,  and  is  naturalized,  and 
afterward  for  any  purpose  whatever,  goes  back  to 
Prussia,  it  is  not  competent  for  the  United  States  to 
protect  him  from  the  operation  of  the  Prussian  law.” 


186 


THE  LAW  OF  CITIZENSHIP 


At  this  time  these  cases  were  of  common  occurrence. 
Citizens  of  the  United  States  were  fined,  imprisoned, 
and  sent  from  the  country,  and  Baron  Manteuffel  de- 
fines the  Prussian  position  as  follows : “ As,  however, 
the  government  of  the  United  States  considers  that  it 
is  not  for  its  interest  to  make  the  admission  of  an  emi- 
grant as  citizen  dependent  on  the  exhibition  of  a docu- 
ment proving  that  the  ties  by  which  he  was  attached 
to  his  old  country  are  dissolved,  it  is  much  to  be  feared 
that  difficulties  will  still  occasionally  arise.” 

THE  WRIGHT  RULE. 

In  1858,  Mr.  Wright,  United  States  minister  at 
Berlin  wrote  as  follow^s  on  this  question : ‘‘No  Ameri- 
can consul  or  minister  can  shield  from  impressment  a 
United  States  citizen,  born  in  Prussia.  Is  it  possible 
there  is  no  remedy  for  this  state  of  things  ? My  opinion 
is,  that  if  a decided  and  firm  stand  be  taken  by  our 
government  during  the  present  peculiar  condition  of 
affairs  in  Prussia,  it  will  lead  to  good  results.  It  is 
certainly  worthy  of  a trial.” 

THE  QUESTION  FURTHER  CONSIDERED. 

During  the  civil  war  in  the  United  States  many 
cases  arose,  which  did  not  receive  any  attention  from 
the  government  of  the  United  States. 

In  1865,  the  question  was  again  agitated  and  con- 
tinued in  discussion  until  1868,  when  the  naturalization 
treaties  were  ratified. 

Under  these  rules,  which  governed  prior  to  the  date 
of  these  treaties,  the  rule  of  construction  by  inference 
must  be,  that  no  expression  of  intent  to  return  was  in- 
tended and  that  the  acts  of  the  naturalized  citizen  in 


IN  THE  UNITED  STATES. 


187 


the  country  of  his  origin  were  to  be  construed  against 
him;  that  he  renounced  his  citizenship  in  the  United 
States  by  a two  years’  residence  in  the  country  of  his 
orio’in. 

Subsequent  to  the  ratification  of  these  treaties  the 
presumption  continued  to  be  made  in  these  cases  and 
they  were  determined  by  the  authorities  without  giv- 
ing a hearing  to  the  naturalized  citizens  of  the  United 
States.  Continuous  discussions  of  cases  followed  be- 
tween the  two  governments. 

In  the  year  1875  the  German  government  made  the 
announcement  that  hereafter  naturalized  Germans, 
who  had  resided  in  Germany  more  than  two  years 
shall  not  be  forced  into  the  army  immediately  upon 
the  expiration  of  that  time,  but  shall  first  be  offered  an 
opportunity  to  return  to  the  United  States. 

Mr.  Fish  to  Mr.  Davis,  November  5,  1875,  then 
communicated  the  views  of  the  United  States:  ^^The 
announcement  is  carefully  worded  and  seems  intended 
to  remove  the  difSculty  which  has  existed.  If  the  course 
indicated  be  fairly  pursued,  and  naturalized  citizens 
resident  in  Germany  are  notified  of  the  intentions  of 
the  authorities,  and  are  allowed  to  depart  prior  to  any 
attempt  to  force  them  into  service,  it  will,  as  is  hoped, 
remove  an  objectionable  feature  in  the  working  of  the 
treaty  and  not  compel  you  to  discuss  cases  where  an 
adverse  decision  has  practically  been  already  pro- 
nounced by  the  authorities.” 

NotAvithstanding  this  announcement,  no  rule  of  con- 
struction has  been  agreed  upon  as  between  the  coun- 
tries, and  the  interpretation  remains  substantially  the 
same. 


188 


THE  LAW  OF  CITIZENSHIP 


The  rule  which  was  made  and  agreed  to  between 
the  United  States  and  the  second  group  of  states  has 
been  free  from  questions,  and  rights  and  privileges  of 
the  respective  citizens  have  been  recognized  in  the  re- 
spective countries. 

The  rule  which  was  made  and  agreed  to  between 
the  United  States  and  the  third  group  of  states,  has 
also  been  free  from  questions,  and  the  status  of  natural- 
ized citizens  in  the  respective  countries  been  recognized 
and  their  rights  and  privileges  defined. 

EFFECT  OF  TREATY  LIMITATIONS. 

Qualifications  imposed  by  treaty  become,  when  such 
treaty  is  duly  solemnized  and  ratified,  part  of  our 
naturalization  system. 

Consequently,  the  effect  of  the  naturalization  trea- 
ties between  the  United  States  and  other  countries  was 
a modification  of  the  naturalization  laws  of  the  United 
States,  so  far  as  the  relations  were  concerned,  which 
were  entered  into  between  the  United  States  and  those 
countries. 

THE  PRACTICE  UNDER  THE  NATURALIZATION  TREATIES. 

Each  case  must  depend  entirely  upon  the  circum- 
stances of  the  same,  is  the  position  taken  by  both  the 
United  States  and  Germany.  F.  R.  of  U.  S.,  1874,  p. 
455. 

The  act  of  the  Secretary  of  State  is  the  act  of  the 
President  of  the  United  States  except  in  such  cases  as 
the  law  may  especially  provide.  The  responsibility  is 
on  the  Executive.  Marbury  vs.  Madison,  1 Cranch, 
137-170;  Parker  vs.  United  States,  1 Peters,  293;  Wil- 
cox vs.  Jackson,  13  Peters,  498 ; United  States  v.  Elia- 


IN  THE  UNITED  STATES. 


189 


son,  16  Peters,  291 ; United  States  vs.  Freeman,  3 
Howard,  556. 

The  Case  op  Mentheim  Cohn. 

Born  in  Hatow,  Germany.  He  emigrated  to  the 
United  States  in  1864,  where  he  became  a citizen  by 
naturalization.  Beturned  to  Germany  in  1872,  where 
he  maiTied  and  settled  down  in  January,  1872.  It 
was  held  by  the  German  government  that  article  IV 
of  the  treaty  of  1868  applied  to  his  case,  and  he  was 
summoned  to  perform  military  service  without  regard 
to  his  naturalization  in  the  United  States. 

The  government  of  the  United  States  issued  to  him 
a passport  upon  his  application,  and  the  case  was  not 
pressed.  F.  R.  of  U.  S.,  1874,  p.  447. 


The  Case  of  Edward  Grubel. 

Born  in  Prussia.  At  the  age  of  seventeen  years, 
and  prior  to  having  been  called  to  perform  military 
service,  he  emigrated  to  the  United  States,  where  he 
became  naturalized  and  resided  seven  years.  On 
Christmas,  1874,  he  returned  to  his  former  home  in 
Prussia,  and  on  January  5, 1875,  he  was  fined  one  hun- 
dred and  fifty  reichsmarks.  He  pleaded  his  American 
citizenship  and  exhibited  his  passport.  It  was  held  by 
the  court  that  he  was  liable  to  a fine  irrespective  of  his 
citizenship,  and  in  default,  was  committed  to  jail. 

The  government  of  the  United  States  put  the  ques- 
tion : Whether  the  unallowed  emigration  of  a per- 

son of  an  age  liable  to  military  duty  is  of  itself  an 
offense  by  the  law  of  Germany,  or  whether  the  issue 
of  a notice  to  perform  military  duty  is  requisite  to  con- 
stitute the  offense.”  It  was  answered  as  follows  : That 


190 


THE  LAW  OF  CITIZENSHIP 


every  German  subject  is  by  law  required  to  be  ready 
to  perform  military  duty  upon  reaching  the  requisite 
age,  and  that  no  notice  is  necessary  in  order  to  entail 
liability  to  do  the  duty  or  to  warrant  a fine  for  neglect 
to  perform  it.  F.  R.  of  U.  S.,  1875,  pp.  489,  533,  534, 
535. 

The  Case  op  Jacob  and  Herman  Castellan. 

Born  in  Posen.  Both  obtained  discharges  from  the 
German  government,  the  one  February  20,  1866,  the 
other  May  6,  1867.  The  one  left  for  the  United  States 
in  1866,  the  other  in  1867.  Both  became  naturalized 
citizens  of  the  United  States,  the  one  January  11,  1871, 
the  other  February  13,  1871,  and  during  the  year  1871 
both  returned  to  Posen  and  settled  there.  The  question 
was  whether  they  were  entitled  to  protection.  It  was 
held  that  under  the  circumstances,  certificates  of  natural- 
ization valid  on  their  face  and  founded  on  the  decree  of 
a competent  court  cannot  be  questioned  except  through 
judicial  proceedings  instituted  for  that  purpose  or  in 
which  the  correctness  of  the  facts  formerly  passed  upon 
may  properly  be  adjudicated.  F.  R.  of  U.  S.,  1875,  p. 
579. 

In  both  of  these  cases  fraud  was  apparent.  Herman 
Castellan  received  his  discharge  from  the  German  gov- 
ernment May  6, 1867,  and  was  naturalized  February  13, 
1871.  Certainly  he  had  not  resided  uninterruptedly 
for  five  years  in  the  United  States  as  the  statute  re- 
quired. He  had  in  this  respect  failed  to  comply  with 
the  law.  He  could  not  have  honestly  satisfied  the  court 
that  he  had  done  so.  No  more  so  could  Jacob  Castellan, 
who  received  his  discharge  February  20,  1866,  and  was 
naturalized  January  11,  1871. 


IN  THE  UNITED  STATES. 


191 


Notwithstanding  this,  the  power  of  the  authorities 
was  underrated,  when  the  department  of  state  decided, 
if  the  political  department  of  the  government  may 
from  time  to  time  pass  upon  such  questions  accord- 
ing to  the  apparent  credibility  of  the  particular  evi- 
dence offered  to  impeach  the  decree,  or  the  varying 
statements  of  an  interested  party,  no  uniformity  of 
decision  or  security  for  acquired  rights  could  exist.” 
F.  E,.  of  U.  S.,  p.  579. 

The  inquiry  as  to  the  discharges  was  instituted  by 
the  local  authorities  of  Germany  and  were  brought  to 
the  knowledge  of  the  government  of  the  United 
States.  They  were  sufficiently  authentic  to  permit 
the  department  to  decide  the  question.  Mr.  Freling- 
huysen  to  Mr.  Hamlin,  Sept.  22,  1882.  Mr.  Fish  to 
Mr.  Moran,  Feb.  16,  1877.  Mr.  Blaine  to  Mr.  Hamlin, 
Dec.  6,  1881.  Mr.  Bayard  to  Mr.  Francis,  May  20, 
1885. 

Case  op  Leo  Geaffenberg. 

Born  in  Germany.  He  emigrated  to  America  in 
1867,  when  seventeen  years  old;  resided  there  more 
than  five  years;  was  naturalized  in  August,  1873; 
returned  to  Germany  in  1874;  he  was  notified  that  he 
had  been  fined  during  his  absence  for  evasion  of  mili- 
tary duty.  Upon  investigation  the  fine  was  remitted  by 
the  German  government  because  of  ignorance  of  the 
fact  that  he  had  become  an  American  citizen.  F.  R.  of 
U.  S.,  1875,  p.  569. 

Case  of  Robert  Gewecke. 

Born  in  Germany.  He  emigrated  to  the  United 
States  when  eighteen  years  of  age,  without  permission 


192 


THE  LAW  OF  CITIZENSHIP 


in  January,  1869 ; in  1874,  he  was  naturalized,  and  in 
1874  returned  to  Germany  where  he  was  notified  that 
he  had  been  fined  for  unallowed  emigration.  Upon 
investigation  the  fine  was  remitted.  F.  R.  of  U.  S., 
1875,  p.  569. 

Case  op  Frederick  A.  Arndt. 

Was  born  in  Germany  in  1835.  In  1855,  he  pre- 
sented himself  for  enrollment,  and  being  a sailor  was 
enrolled  in  the  navy  to  serv^^e  until  his  thirty-ninth 
year.  From  1855  to  1868,  he  served  by  permission  on 
merchant  vessels.  In  1868,  he  took  up  his  residence 
in  New  York ; remained  there  over  five  years  and  was 
naturalized.  He  returned  subsequently  to  Germany, 
and  entered  business.  He  was  fined  and  sentenced  to 
six  years’  service  in  the  navy  for  unauthorized  emigra- 
tion and  for  not  responding  to  the  call  in  1870.  Upon 
request  made  by  the  government  of  the  United 
States,  the  fine  was  remitted  and  the  sentence  reversed. 
Arndt  had  not  resided  two  years  in  Germany  when 
arrested.  F.  R.  of  U.  S.,  1875,  p.  569. 

Case  of  Henry  Mumbour. 

Bom  in  Germany.  He  served  three  years  in  the 
Prussian  army,  was  then  placed  in  the  reserve  and  ob- 
tained a leave  of  absence  for  one  year.  In  April,  1 869,  he 
went  to  the  United  States.  While  there  the  reserves 
were  called  out  in  the  war  against  France.  He  re- 
ceived his  call  while  in  the  United  States,  and  decided 
to  remain  there  and  to  become  naturalized.  In  1874, 
he  returned  to  Germany.  He  was  arrested  and  sen- 
tenced to  imprisonment  for  one  year  for  desertion. 
The  government  interceded  in  his  behalf  to  which  the 


IN  THE  UNITED  STATES. 


193 


German  authorities  replied  that  he  was  residing  in 
Germany  without  intent  to  return  to  the  United 
States,  as  he  admitted  on  examination ; therefore, 
under  the  treaty  he  had  renounced  his  American 
citizenship.  They  declined  to  remit  the  sentence.  F. 
R.  of  U.  S.  1875,  p.  569. 

Case  of  Jacob  Weick. 

Born  in  Germany.  He  was  summoned  in  1869  to  do 
military  duty.  Instead  of  responding,  he  emigrated 
to  the  United  States  where  he  resided  five  years  and 
became  a citizen.  During  his  absence  a fine  was  levied 
on  his  estate.  On  his  return  he  was  arrested  for 
desertion.  Pending  examination  he  fled  to  Switzer- 
land. The  government  of  the  United  States  inter- 
ceded in  his  behalf  to  which  reply  was  made  that  he 
had  been  adjudged  to  be  a deserter  and  that  sentence 
would  be  enforced  should  he  come  within  the  jurisdic- 
tion. F.  R.  of  U.  S.,  1875,  p.  570. 


Case  op  Theodore  Vopel. 

Born  in  Germany.  After  service  in  the  army  for 
three  years  and  in  the  reserve  for  three  months,  he 
emigrated  to  the  United  States  where  he  became  a 
naturalized  citizen.  He  returned  to  Germany  in  1874 
where  he  was  fined  for  illegal  emigration.  Upon  inves- 
tigation the  fine  was  remitted.  F.  R.  of  U.  S.,  1875, 
p.  570. 


Case  of  Charles  H.  A.  Gerding. 

Born  in  Germany.  He  emigrated  to  the  United  States 
when  twenty  years  of  age,  remained  there  five  years 
and  two  months,  where  he  became  naturalized.  He 
25 


194: 


THE  LAW  OF  CITIZENSHIP 


returned  to  Germany  to  sell  out  some  property  and 
then  returned  to  the  United  States.  He  was  arrested 
and  forced  into  the  army.  Upon  investigation  he  was 
released  on  condition  that  he  returned  to  the  United 
States.  F.  R.  of  U.  S.,  1875,  p.  570. 


Case  op  Philip  Humbert. 

Born  in  Germany  in  1840.  Served  one  year  in  the 
Prussian  army ; emigrated  to  the  United  States  in 
1868  ; was  there  naturalized  and  returned  to  Germany 
in  1874.  He  was  notified  upon  return  that  he  had 
been  fined  for  non-performance  of  military  duty.  He 
stated  in  defense  that  he  was  a doctor  of  medicine  and 
had  returned  to  Germany  ^Go  live  for  a longer  or 
shorter  time  and  to  practice  his  profession.”  The 
authorities  of  the  United  States  replied  that  such 
language  implied  residence  in  Germany  without  intent 
to  return  to  America.”  He  paid  the  fine  to  the  Ger- 
man government.  F.  R.  of  U.  S.,  1875,  p.  570. 

Case  of  Louis  Wohlgemuth. 

Born  in  Germany.  He  emigrated  to  the  United  States 
when  eighteen  years  of  age,  and  there  became  a citizen 
by  naturalization.  He  returned  to  Germany  and  was 
notified  that  he  had  been  fined  for  non-performance  of 
military  duty.  Upon  investigation  it  was  found  that 
the  fine  had  been  paid  by  his  father  and  it  was  ordered 
that  it  be  remitted  to  him.  F.  R.  of  U.  S.,  1875,  p. 
571. 

Case  op  Martin  Beckman. 

Emigrated  to  the  United  States  when  nineteen  years 
of  age ; became  a naturalized  citizen  and  land-owner 
in  Nebraska ; returned  to  visit  his  father  in  Kiehl  and 


IN  THE  UNITED  STATES. 


195 


was  forced  into  the  German  army.  Upon  investiga* 
tion  lie  was  released.  F.  R.  of  U.  S.,  1875,  p.  571. 

Case  op  Maurice  A.  Newmarch. 

He  was  a native  of  Prussia ; resided  more  than  five 
years  in  the  United  States  and  became  a citizen  by 
naturalization.  He  returned  to  Germany  and  was 
notified  to  pay  a fine  which  had  been  imposed  in  his 
absence  because  of  non-performance  of  military  service. 
Upon  investigation  it  was  found  that  the  fine  had  been 
paid  by  his  father ; the  German  authorities  refused  to 
remit  it  on  the  ground  that  it  had  been  paid  without 
protest  and  because  five  years’  residence  in  the  United 
States  had  not  been  satisfactorily  proved.  F.  R.  of 
U.  S.,  1875,  p.  571. 


Case  op  Charles  S.  Rosenthal. 

Born  in  Prussia,  March  13,  1847.  Fie  went  to  the 
United  States  in  July,  1865;  was  naturalized  November 
16,  1869.  He  invoked  the  intervention  of  the  authori- 
ties of  the  United  States  for  remission  of  fine  imposed 
for  non-performance  of  military  duty.  This  was  re- 
fused by  the  German  authorities  on  the  ground  that 
his  naturalization  was  improperly  obtained,  he  not 
having  resided  five  years  in  the  United  States  and  had 
not  served  in  the  army  of  the  United  States. 

The  German  authorities  would  not  accept  as  final  a 
decree  of  a court  of  competent  jurisdiction  in  the 
United  States  which  had  conferred  on  Rosenthal  the 
rights  of  citizenship.  They  inspected  the  record  and 
investigated  the  facts,  and  finding  that  the  treaty  had 
not  been  complied  with,  retained  him  as  a German 
subject.  The  political  authorities  of  the  United  States 


196 


THE  LAW  OF  CITIZENSHIP 


in  tlie  case  of  tlie  brothers  Castilian  would  not  go  be- 
hind the  record,  yet  the  same  authorities  in  Germany 
deemed  it  their  duty  and  right  to  do  so  in  order  to 
prevent  imposition.  Had  they  done  so  in  the  case  of 
the  brothers  Castilian,  they  would  have  reached  the 
same  conclusion  as  in  the  case  of  Rosenthal.  F.  R.  of 
U.  S.,  1875,  p.  572. 

Case  of  C.  F.  H.  Jantzen. 

A native  of  Mecklenburg.  Emigrated  in  1868  to  the 
United  States;  was  naturalized  in  1875,  when  he  re- 
turned to  Germany.  He  was  forced  into  the  German 
army  ; on  proof  of  his  American  citizenship  he  was  re- 
leased. F.  R.  of  U.  S.,1875,  p.  572. 


Case  of  Hilar  Fresh. 

Born  in  Germany.  He  emigrated  to  the  United  States, 
became  naturalized  and  returned  to  Wurtemberg, 
where  he  resided  nearly  two  years.  He  inquired  for 
information  concerning  his  rights,  having  been  notified 
that  a residence  of  two  years  Avould  be  held  to  be  a 
renunciation  of  his  American  citizenship.  The  legisla- 
tion of  the  United  States  notified  him  that  after  the 
expiration  of  two  years,  it  would  be  much  more  diffi- 
cult to  protect  him,  and  counseled  him  to  go  to  America. 

This  was  in  direct  contradiction  of  the  treaty  with 
W urtemberg,  article  IV,  which  is  “ the  emigrant  from 
the  one  state  who,  according  to  the  first  article,  is  to  be 
held  as  a citizen  of  the  other  state,  shall  not  on  his  re- 
turn to  his  original  country  be  constrained  to  resume 
his  former  citizenship,  yet  if  he  shall  of  his  own  accord 
re-acquire  it  and  renounce  the  citizenship  acquired  by 
naturalization,  such  a renunciation  is  allowed,  and  no 


IN  THE  UNITED  STATES. 


197 


fixed  period  of  residence  shall  be  required  for  recovery 
of  citizenship  in  his  original  country.  F.  R.  of  U.  S., 
1875,  p.  572. 

Case  op  Andreas  Frederick  Baab. 

Born  in  Germany.  He  emigrated  to  the  United  States, 
resided  there  five  years  and  became  a citizen  by  natural- 
ization. He  returned  to  Germany  w^here,  after  a resi- 
dence of  nearly  two  years,  he  was  notified  that  he  must 
leave  Germany  after  the  expiration  of  two  years  or 
enter  the  army.  He  went  to  the  United  States  where 
he  remained  for  a few  weeks  and  returned  to  Germany; 
he  was  at  once  put  into  the  army.  The  legation  of  the 
United  States  intervened  in  his  behalf ; the  German 
authorities  refused  to  release  him.  F.  K..  of  U.  S., 
1877'  p.  246. 

Case  op  Marcus  Hirsch. 

Born  in  Germany.  He  emigrated  to  the  United  States 
where  he  was  naturalized.  He  subsequently  returned 
to  Germany.  He  was  asked  by  the  German  authori- 
ties whether  he  intended  to  return  to  America,  and  de- 
clined to  answer.  The  same  inquiry  was  made  by  the 
American  authorities,  to  which  the  same  answer  was 
given ; a passport  was  denied  him.  F.  R.  of  U.  S., 
1877,  p.  248. 

Case  op  Deidrich  Jacobson. 

Born  in  Germany.  He  emigrated  to  the  United  States 
in  1871,  was  naturalized  in  1876,  and  returned  to  Ger- 
many in  the  same  year.  He  took  up  his  residence 
there  and  had  no  purpose  of  returning  to  the  United 
States.  Upon  application  for  passport  his  citizen  papers 
were  retained  by  the  legation  in  Berlin,  and  the  course 


198 


THE  LAW  OF  CITIZENSHIP 


was  approved  by  tbe  authorities  at  Washington.  F. 
R of  U.  S.,  1877,  p.  248. 


Case  of  E.  F.  Kloss. 

A native  of  Prussia.  Emigrated  to  the  United  States, 
arriving  there  November  11,  1870;  was  naturalized 
November  1,  1875,  after  a residence  of  less  than  live 
years.  Returning  to  Prussia,  he  was  lined  for  emigra- 
tion without  permission,  and  after  paying  the  line  sought 
the  intervention  of  the  United  States,  which  was  denied 
him.  F.  R.  of  U.  S.,  1877,  p.  249. 

The  German  authorities  should  have  investigated 
this  case  as  fully  as  was  done  in  the  case  of  Charles 
S.  Rosenthal.  It  would  appear  that  the  authorities  of 
the  United  States  did  so  notwithstanding  the  ruling 
laid  down  in  the  case  of  the  brothers  Castilian. 

Case  op  Gustave  Kriegal. 

Born  in  Prussia.  Emigrated  to  the  United  States  in 
1870  when  fifteen  and  one-half  years  old  ; returned 
to  Prussia  in  1874;  re-emigrated  the  same  year  with  a 
German  passport  authorizing  him  to  go  abroad  tem- 
porarily subject  to  liability  to  return  to  perform  mili- 
tary duty;  was  naturalized  October  19,  1876;  he 
returned  immediately  thereafter  to  Germany,  and  was 
ordered  to  be  enrolled.  The  authorities  of  the  United 
States  refused  to  interfere.  F.  R.  of  U.  S.,  1877,  p. 
249. 

Case  of  Charles  Levinson. 

Born  in  Germany.  Emigrated  to  the  United  States, 
then  returned  to  Germany.  He  applied  for  a new 
passport  from  the  legation  at  Berlin,  producing  a 
certificate  of  natui'alization  and  an  old  passport.  Upon 


IN  THE  UNITED  STATES. 


199 


investigation,  it  was  shown  that  he  left  Germany 
too  late  to  have  had  a five  years’  residence  in  the 
United  States.  The  papers  were  retained  and  pass- 
port refused.  F.  R.  of  U.  S.,  1877,  p.  249. 

The  investigation  by  the  authorities  was  correct. 
The  claim  to  citizenship  should  only  be  allowed  upon 
the  clearest  evidence  and  when  it  is  discovered  in  the 
examination  of  the  case  that  the  certificate  of  citizen- 
ship has  been  fraudulently  obtained,  it  is  right  to 
refuse  to  surrender  such  papers  to  an  applicant  for 
protection  who  has  practiced  deceit  and  thereafter 
seeks  to  impose  on  the  government  of  the  United 
States  and  his  own  native  government. 

Case  op  Edward  Mammelsdorf. 

Born  in  Germany.  He  emigrated  to  the  United 
States  in  1867 ; resided  there  five  and  one-half 
years;  was  naturalized;  resumed  his  residence  in 
Germany  in  1872.  In  1875  he  received  a passport. 
In  1877  he  applied  for  a new  passport,  having  lost 
the  one  given  him  in  1872.  The  legation  of  the 
United  States  at  Berlin  decided  that  the  facts  tended 
to  raise  a presumption  that  Mammelsdorf  had  sought 
naturalization  in  order  to  avoid  military  duty  in 
Germany,  and  that  it  would  not  consider  his  applica- 
tion for  a new  passport  until  the  expiration  of  two 
years  from  the  issue  of  the  old  passport. 

The  German  authorities  had  not  raised  any  question 
as  to  his  citizenship.  F.  R.  of  Uo  S.,  1877,  p.  250. 

Case  op  Walde  Salamonzke. 

Born  in  Germany.  Emigrated  to  the  United  States 
and  there  received  a certificate  of  naturalization.  Upon 


200 


THE  LAW  OF  CITIZENSHIP 


application  for  protection  on  return  to  Germany,  it 
was  disco  veered  that  he  had  not  resided  in  the  United 
States  for  five  years,  and  no  protection  was  extended 
to  him.  The  German  authorities  had  not  claimed  or 
raised  any  question  as  to  him.  F.  R of  U.  S.,  1877, 
p.  251. 

Case  of  John  Soola. 

A native  of  Hesse-Darmstadt.  Born  in  1850;  ob- 
tained a discharge  from  his  German  nationality  and 
emigrated  in  his  seventeenth  year;  was  naturalized 
November  14,  1873.  He  returned  and  resumed  his 
residence  in  Hesse,  in  August,  1876 ; he  was  ordered 
by  the  German  government  to  return  to  the  United 
States  or  enter  the  army.  The  authorities  of  the 
United  States  refused  to  interfere  in  his  case  on  the 
ground  “there  was  no  good  reason  to  take  it  out  of 
the  operation  of  the  treaty.”  See  article  IV,  treaty 
with  Hesse-Darmstadt.  F.  R of  U.  S.,  1877,  p.  251. 

Case  op  Gottlieb  Villingee,. 

Born  in  Germany.  He  emigrated  to  the  United 
States  and  arrived  in  lower  bay  of  New  York  on  the 
evening  of  the  2d  of  September,  1869;  landed  on  the 
morning  of  the  8d ; was  naturalized  September  2, 
1874;  returned  to  Germany  September  4,  1874, 
where,  upon  arrival,  he  went  into  business.  He 
applied  for  a passport,  which  was  refused  ; evidence  be- 
ing produced  against  him  that  he  did  not  intend  to  re- 
turn to  the  United  States.  F.  B.  of  U.  S.,  1877,  p.  252. 

Case  of  Julius  Baumer. 

Born  in  Prussia.  When  he  reached  the  age  of 
twenty  years,  he  obtained  from  his  government  a 


IN  THE  UNITED  STATES. 


201 


formal  permission  in  writing  to  emigrate.  He  came  to 
the  United  States,  and  on  the  6th  of  November,  1876, 
became  a naturalized  citizen  of  the  United  States.  In 
the  year  1877  he  returned  to  Prussia  with  the  intent 
to  remain  about  six  months.  After  his  arrival  he  was 
notified  by  the  local  authorities,  that  he  must  either 
perform  military  service  or  submit  to  banishment. 
He  appealed  from  this  notice  to  the  higher  authorities 
who  gave  to  him  the  alternative,  to  leave  the  country 
within  eight  days  or  enter  the  army.  He  thereupon 
left  the  country. 

It  was  held  by  the  authorities  of  the  United  States 
that  such  proceedings  were  unwarranted  and  illegal  ; 
that  he  was  a citizen  of  the  United  States,  and  as  such 
was  entitled  to  the  protection  of  the  government. 
Upon  this  finding^  he  should  have  returned  to 
Germany.  F.  R.  of  U.  S.,  1878,  pp.  210-228. 


Case  of  Chakles  Gtanzenmuller. 

Born  in  the  grand  duchy  of  Baden  in  1851.  He 
emigrated  to  the  United  States  with  permission  of  the 
Baden  authorities,  and  became  a naturalized  citizen  of 
the  United  States  in  1875.  In  the  same  year,  he  re- 
turned to  Baden,  to  care  for  an  aged  and  decrepit  father. 
He  was  immediately  ordered  by  the  local  authorities  to 
leave  Baden  or  become  a citizen  of  the  grand  duchy 
subject  to  military  duty.  The  reason  for  this  was, 
because  his  exemption  from  military  service  for 
reason  of  his  American  citizenship  was  a bad  example 
to  other  young  men.  And  this  was  brought  within 
the  local  law  of  the  grand  duchy,  enacted  May  5, 
1870,  that  “ the  grand  ducal  minister  of  the  interior 
26 


202 


THE  LAW  OF  CITIZENSHIP 


may  at  any  time  decree  tlie  expulsion  of  such  foreigners 
as  endanger  the  internal  and  external  safety  of  the 
state.” 

The  imperial  government  refused  to  annul  the 
decree  of  expulsion. 

Ganzenmuller  left  the  country  disgusted,  because 
protection  was  not  afforded  him.  This  he  should  have 
had. 

The  treaty  with  the  United  States  was  made  in 
1868 — of  which  article  fourth  is  as  follows:  “The 
emigrant  from  the  one  state  who,  according  to  the  first 
article,  is  to  be  held  as  a citizen  of  the  other  state, 
shall  not,  on  his  return  to  his  original  country  be  con- 
strained to  resume  his  former  citizenship.” 

Under  this  rule  he  was  to  be  recognized  as  an 
American  citizen,  and  under  the  first  article  of  the 
same  treaty  “ shall  be  treated  as  such,”  upon  return  to 
Baden. 

The  law  passed  by  the  Baden  authorities  was  in 
1870,  two  years  later  than  the  treaty.  Its  application 
to  the  case  of  Ganzenmuller  and  the  reason  for  its 
application  is  in  derogation  of  the  treaty  in  its  import 
and  meaning. 

“A  treaty  is  a general  rule  of  law  for  the  contract- 
ing parties.  Pactum  instar  legis.”  Bluntschli  Voelker 
Recht,  § 402. 

The  treaty  was  the  law  for  both  the  United  States 
and  the  grand  duchy  of  Baden.  The  municipal  rule, 
as  passed  by  Baden  in  1870,  was  in  conflict,  and  one 
of  which  the  government  of  the  United  States  had  no 
official  notice  that  its  purpose  was  to  change  the  intent 
of  the  treaty  of  1868,  nor  would  such  notice  have 


IN  THE  UNITED  STATES. 


203 


availed,  the  treaty  for  1868  having  been  made  for  a 
term  of  ten  years  from  its  date. 

The  position  taken  by  Baden  was  not  tenable.  If 
the  recognition  of  Ganzenmuller  as  an  American  citi- 
zen as  such  under  the  treaty  did  not  apply  to  him  in 
Baden,  then  the  treaty  was  valueless.  There  was  no 
two-year  rule  as  in  other  German  treaties  made  at  the 
same  time.  F.  R.  of  U.  S.,  1878,  p.  216. 


Case  op  Martin  Zimmer. 

A native  of  Hesse-Darmstadt.  Emigrated  to  the 
United  States  October,  1868,  at  the  age  of  fourteen, 
with  written  permission  from  the  authorities;  was 
naturalized  in  1877 ; returned  to  Germany  the  same 
year,  to  visit  his  parents ; was  arrested  and  forcibly 
enrolled  in  the  army  as  an  unsafe  person  liable  to 
military  service.”  During  his  absence  in  America  he 
had  been  sentenced  to  pay  a fine  for  evasion  of  mili- 
tary service.  Request  was  made  that  Zimmer  be 
released  from  the  army,  which  was  granted  by  the 
German  authorities.  F.  R.  of  U.  S.,  1879,  p.  368. 

Case  op  Ernest  Eggers. 

Born  in  Hanover  in  1846.  Emigrated  to  the  United 
States  in  1867  ; declared  his  intention  to  become  a 
citizen  of  the  United  States  in  1868,  and  was  natural- 
ized in  1878.  While  in  the  United  States,  and  after 
naturalization,  he  complained  that  his  property  in  Ger- 
many had  been  attached  for  evasion  of  military  service; 
the  authorities  of  the  United  States  intervened  in  his 
behalf  and  received  report  that  the  attachment  had  ex* 
pired  by  reason  of  limitation.  F.  R.  of  U.  S,  1879,  p. 
369. 


204 


THE  LAW  OF  CITIZENSHIP 


Although  the  attachment  may  have  expired  for 
reason  of  limitation  it  does  not  follow  but  that  new  pro- 
ceedings could  have  been  begun  against  his  person, 
upon  return  to  Germany. 

Case  of  Frank  Klagges. 

Born  in  Westphalia  in  1857.  Emigrated  to  the 
United  States  in  November,  1864,  and  was  naturalized 
about  ten  years  later.  In  1875,  he  returned  on  a visit 
to  Germany,  and  was  informed  in  1878  that  he  must 
become  a German  citizen  within  four  weeks  or  return 
to  the  United  States.  The  legation  of  the  United 
States  took  the  position,  as  Klagges  had  exceeded  the 
two  years’  visit  allowed  by  the  treaty,  the  legation  could 
only  ask  as  a favor  of  the  German  government  that  he 
might  be  allowed  to  remain  longer  than  four  weeks, 
for  reason  of  his  wife’s  illness;  the  favor  was  granted 
by  the  German  government.  It  is  to  be  noticed  in  this 
case  that  Klagges  was  thirty-eight  years  of  age  upon 
return ; too  old  for  military  service ; he  had  not  been 
fined,  nor  was  he  held  for  any  unfulfilled  obligations. 

He  had  simply  resided  in  Germany  more  than  two 
years  and  was  ordered  to  return  to  the  United  States 
or  become  a German  subject.  In  concurring  with  this 
action  of  Germany  the  authorities  of  the  United  States 
accepted  the  German  version  of  article  IV  of  the  treaty 
and  asserted  no  rights  in  his  behalf.  For  eleven  years 
he  had  been  resident  in  the  United  States.  His  posi- 
tion was  a most  unenviable  one.  Contrary  to  his  will 
he  must  surrender  his  American  citizenship  or  return 
to  the  United  States  to  preserve  it.  He  concluded  to 
remain  in  Germany.  F.  B.  of  U.  S.,  1879,  p.  369. 


IN  THE  UNITED  STATES. 


205 


Case  op  J ohn  Gottfried  Berude. 

Born  in  Prussia  in  1849.  Emigrated  to  America  in 
1870  ; was  naturalized  in  1877  and  in  1878  returned  to 
Germany,  to  visit  his  father  with  intent  to  return  to 
the  United  States  within  two  months  to  take  command 
of  a ship.  He  was  imprisoned  for  non-payment  of  a fine 
imposed  in  his  absence  for  neglect  to  perform  military 
service.  Upon  petition  the  fine  was  remitted  with  the 
emperor’s  pardon  from  imprisonment,  the  return  to 
the  United  States  being  the  reason  therefor.  F.  R.  of 
U.  S.,  1879,  p.  371. 


Case  op  Christian  Henkes, 

Born  in  Prussia.  Emigrated  to  the  United  States  at 
the  age  of  sixteen;  was  naturalized  in  1875;  was  fined 
for  non-performance  of  military  duty.  He  petitioned 
while  in  the  United  States  for  remission  of  the  fine, 
which  his  father  had  paid.  The  petition  was  granted. 
F.  R.  of  U.  S.,  1879,  p.  371. 


Case  op  Alexander  F,  Wallner, 

Born  in  Russia  of  German  parents,  in  1848.  He 
emigrated  to  the  United  States  in  1871  ; was  natural- 
ized in  1877;  returned  immediately  to  Germany  where 
he  had  been  fined  for  non-performance  of  military  duty. 
Upon  application  the  fine  was  remitted.  F.  R.  of  U. 
S.,  1879,  p.  371. 

Case  op  C.  R.  Muller. 

A naturalized  American  citizen  returned  to  Ger- 
many in  1876,  at  the  age  of  twenty-eight  years  and  re- 
mained until  1880  in  business.  His  visit  having  ex- 
ceeded the  two  years  allowed  by  treaty,  he  was  ordered 


206 


THE  LAW  OF  CITIZENSHIP 


to  leave  the  country  within  eight  days.  He  petitioned 
for  more  time,  and  at  the  request  of  the  American  au- 
thorities he  was  granted  three  months,  to  return  at  the 
expiration  of  that  time.  F.  R.  of  U.  S.,  1881,  p.  476. 

Case  op  John  C.  Hagedorn. 

Born  in  Wendel,  Schleswig-Holstein  in  1852.  Emi- 
grated  in  1868  to  the  United  States,  where  he  was 
naturalized  in  1880.  He  returned  on  a visit  to  Ger- 
many, and  was  informed  that  he  had  been  lined  for 
non-performance  of  military  duty.  He  petitioned  that 
the  fine  be  remitted  upon  his  return  to  the  United 
States.  This  was  granted  by  the  German  authorities. 
F.  R.  of  U.  S.,  1881,  p.  476.  » 

Case  of  William  Brink. 

Was  born  March  9th,  1858,  in  Prussia.  In  1872,  he 
emigrated  with  his  mother  to  the  United  States,  to  join 
his  father  who  had  emigrated  in  1871,  and  was  natur- 
alized in  1876.  In  1881  the  father  and  son  returned 
to  Germany  for  a few  weeks  ; the  son  was  arrested, 
and  enrolled  in  the  army.  Upon  petition,  was  re- 
leased ; he  was  then  fined ; upon  petition  for  remission 
of  the  fine  it  was  returned,  the  father  and  son  return- 
ing to  the  United  States.  F.  R.  of  U.  S.  1882,  p.  187. 


Case  of  Gteorge  E.  R.  Boetcher. 

Born  in  Germany  in  1851.  Emigrated  to  the  United 
States  in  1871;  was  naturalized  in  1878,  after  which 
he  became  an  officer  in  the  American  merchant  marine. 
With  his  vessel  he  arrived  in  Bremerhafen ; went  on 
a visit  to  his  parents,  was  arrested  and  fined.  ' Upon 
petition  he  was  released  and  fine  remitted,  upon  proof 


IN  THE  UNITED  STATES. 


207 


of  his  citizenship  and  intent  to  leave  the  country.  F. 
R.  of  U.  S.,  1882,  IX  188. 

Case  op  Edward  Cordes. 

Born  in  Hamburg,  Germany,  in  1853.  He  emigrated 
to  tlie  United  States  in  1872,  where  lie  was  natural- 
ized in  1878.  He  returned  soon  after  to  Germany, 
where  he  resided  for  a period  of  time  exceeding  two 
years.  The  German  authorities  arrested  him,  and  en- 
rolled him  in  the  army  for  service.  The  evidence  of 
intent  to  return  was  unsatisfactory,  and  the  legation 
would  not  intervene  in  his  behalf,  he  having  actually 
resided  more  than  the  two  years  allowed  by  treaty, 
was  consequently  liable  to  be  considered  by  the  German 
government  to  have  forfeited  his  American  nationality. 

Cordes  was  discharged,  and  returned  to  the  United 
States.  Under  this  ruling,  it  would  seem  that  question 
of  intent  to  return  to  the  United  States  is  not  open  for 
expression,  after  two  years’  residence.  After  that  time, 
one  is  liable  to  be  considered  by  the  German  govern- 
ment to  have  renounced  his  American  nationality.  F. 
R.  of  U.  S.,  1882,  p.  188. 

Case  of  Bertrand  Horstmann. 

Born  in  Germany  in  1851.  He  emigrated  to  the 
United  States  in  1872,  where  he  was  naturalized  in 
1881,  and  returned  to  Germany  in  1882.  He  was 
arrested  as  a deserter,  and  claimed  the  protection  of 
the  government  of  the  United  States.  It  was  held  by 
the  German  government,  that  in  accordance  with  the 
terms  of  the  treaty  of  1868,  he  was  a deserter,  and  was, 
therefore,  sentenced  to  a fine  and  imprisonment,  in 
which  decision  the  United  States  acquiesced.  F.  R. 
of  U.  S.,  1882,  p.  190. 


208 


THE  LAW  OF  CITIZENSHIP 


Case  of  George  E.  De  La  Roi. 

Born  in  1856.  Emigrated  at  tlie  age  of  sixteen  to 
the  United  States,  and  was  naturalized  in  1878.  While 
in  the  United  States  he  received  notice  that  he  had 
been  fined  for  non-fulfillment  of  military  duty,  and  in 
case  of  non  payment,  would  be  imprisoned.  Upon  pe- 
tition, setting  forth  his  American  citizenship,  which 
upon  examination  by  the  German  authorities  was  found 
to  be  in  legal  form,  the  fine  was  remitted.  F.  R.  of 
U.  S.,  1884,  p.  208. 

Case  of  Gustave  Held. 

Born  in  Prussia.  He  emigrated  at  the  age  of  twenty- 
three,  and  was  naturalized  in  1883.  Before  emigration, 
he  had  served  two  years  in  the  army,  and  been  honor- 
ably discharged.  He  returned  to  Germany,  and  there 
ordered  to  appear  in  court,  and  was  fined.  Upon  pe- 
tition and  hearing  in  the  case,  in  which  his  American 
citizenship  was  established,  as  also  his  performance  of 
military  duty  to  Germany,  it  was  held  that  the  fine 
be  remitted.  F.  R.  of  U.  S.,  1884,  p.  209. 

Law  of  June  1,  1870,  concerning  the  loss  and  acqui- 
sition of  nationality  in  the  North  German  confeder- 
ation, and  in  the  various  states  thereof. 

Section  13.  Nationality  can  be  lost  henceforth  in  the 
following  ways  only : 

(1)  By  discharge  upon  application  therefor. 

(2)  By  decree  of  the  public  authority. 

(3)  By  a residence  of  ten  years  abroad. 

(4)  In  the  case  of  illegitimate  children,  the  father 
having  another  allegiance  than  that  of  the  mother  by 
legitimation  effected  pursuant  to  the  provision  of  law. 

(5)  In  the  case  of  a North  German,  by  marriage 


IN  THE  UNITED  STATES. 


209 


with  a person  having  allegiance  in  another  state  of  the 
confederation  or  with  a foreigner. 

Section  21.  North  Germans  who  leave  the  territory 
of  the  confederation  and  sojourn  during  a period 
of  ten  years  uninterruptedly  abroad,  lose  thereby 
their  state  nationality.  The  above-designated  period 
is  reckoned  from  the  time  of  the  departure  from  the 
territory  of  the  confederation ; or,  if  the  person  leav- 
ing is  in  possession  of  a passport  or  home  certificate 
from  the  time  of  the  expiration  of  this  paper.  It  is 
interrupted  by  an  entry  on  the  files  of  a consulate  of 
the  confederation.  Its  course  recommences  with  the 
day  following  the  cancellation  of  the  entry  on  these 
files. 

For  North  Germans  who  sojourn  in  a foreign  state 
for  at  least  five  years  uninterruptedly,  and  at  the  same 
time  acquire  nationality  there  the  period  of  ten  years 
may  be  reduced  to  one  of  five,  whether  or  not  the  per- 
sons concerned  are  in  possession  of  a passport  or  home 
certificate. 

This  law  was  made  applicable  to  Alsace-Lorraine  by 
law  of  January  8,  1873. 

WITH  ALSACE-LORRAINE  PROVINCES  OF  FRANCE,  UNTIL 
1870,  THEN  ANNEXED  TO  GERMANY. 

Case  of  August  Mely. 

Born  in  Lorraine  in  1836.  Went  to  the  United 
States  in  1852  ; naturalized  in  1853;  returned  to  Lor- 
raine in  1861 ; bringing  with  him  his  son,  born  in  the 
United  States ; where  he  continuously  resided,  until 
1877,  when  he  complained  that  the  German  govern- 
ment had  called  on  his  son  to  perform  military  duty, 
on  the  ground  that  his  father’s  long  residence  in  his 
27 


210 


THE  LAW  OF  CITIZENSHIP 


native  place  had.  worked  a renunciation  of  his  natural- 
ization. The  authorities  of  the  United  States  refused 
to  interfere.  F R.  of  U.  S.,  1877,  p.  250. 

It  was  not  until  1871  that  Alsace-Lorraine  was  an- 
nexed to  Germany ; at  the  time  of  the  annexation 
Mely  was  a citizen  of  the  United  States,  residing  in 
the  country  of  his  nativity,  which  was  France.  By 
the  law  of  that  country  he  had  lost  his  quality  as  a 
French  citizen,  by  his  act  of  naturalization  in  the 
United  States,  and  was  there  regarded  as  a citizen  of 
the  United  States.  Code  Civile,  § 17. 

By  the  treaty  of  May  10,  1871,  between  the  German 
empire  and  France,  the  right  of  option  was  given  to 
the  inhabitants  of  the  provinces  of  Alsace  and  Lor- 
raine to  remain  citizens  of  France,  or  become  citizens 
of  Germany.  This  right  to  optate  was  open  until 
October  1,  1872.  Bluntschli  Voelker  Recht,  § 286. 

This  contract  as  between  the  contracting  parties, 
France  and  Germany,  could  only  apply  to  the  citizens 
of  the  res]3ective  countries,  parties  to  the  contract.  It 
could  not  in  any  sense  apply  to  aliens  living  in  either 
the  provinces  of  Alsace  or  Lorraine.  There  was  no 
evidence  to  show  that  Mely  optated  to  become  a 
citizen  of  Germany. 

The  rule  was  not  applicable  to  him,  nor  did  he 
come  within  it.  His  course  was  to  comply  with  the 
German  law  of  naturalization,  after  it  had  been  ex- 
tended to  the  provinces  of  Alsace  and  Lorraine  pre- 
cisely as  would  any  alien.  The  application  of  the  rule 
which  might  have  been  made  in  Germany,  had  he,  as 
a naturalized  citizen  of  the  United  States,  returned  to 
that  country  as  the  one  of  his  nativity,  and  there  re- 


IN  THE  UNITED  STATES. 


211 


sided  as  lie  liad  done  in  France,  to  wliicli  country  he 
did  return,  as  the  country  of  his  nativity,  is  certainly 
far  fetched. 

He  had  lived  in  France,  recognized  as  an  American 
citizen,  and  was  such  by  the  laws  of  France  at  the  date 
of  the  annexation  in  1871.  The  German  authorities 
then  come  in  and  say,  because  Mely  has  been  absent 
from  the  United  States  for  so  long  a time,  and  during  that 
time  has  been  in  a foreign  country,  other  than  Germany, 
that  he  has  lost  his  citizenship.  Under  the  French 
law,  he  could  only  have  acquired  his  former  citizen- 
ship in  France  by  naturalization.  This  he  had  not 
done. 

Section  2000,  Rev.  Stat.,  was  then  in  force,  having 
been  passed  in  1868,  by  which  naturalized  citizens  of 
the  United  States  are  entitled  to  the  same  protection 
as  native  born  citizens  when  in  foreign  countries. 
This  rule  should  have  been  enforced  as  against  the 
claim  as  made  by  the  German  government,  which  was 
a mere  subterfuge  to  expel  Mely  from  the  empire. 


Case  op  Elie  Block,  1879. 

Born  in  Alsace  in  1851.  Emigrated  to  the  United 
States  in  1872  ; was  naturalized  in  1878,  and  returned 
to  Germany  the  same  year.  He  was  notified  that  he 
had  been  fined  for  evasion  of  military  duty.  Uj^on 
investigation,  the  German  government  extended  to  him 
the  right  to  remain  in  the  place  of  his  nativity,  for  two 
years,  and  then  leave  the  country.  F.  R.  of  U.  S., 
1879,  p.  873. 

Block  was  not  a native  of  Germany.  He  was  a native 
of  France,  by  the  laws  of  which  he  was  recognized  as 


212 


THE  LAW  OF  CITIZENSHIP 


a citizen  of  the  United  States  for  reason  of  natural- 
ization in  a foreign  country.  He  had  sought  natural- 
ization in  the  United  States,  subsequent  to  the  annexa- 
tion of  Alsace  to  Germany.  There  does  not  appear  to 
be  any  evidence  of  his  having  exercised  the  right  of 
option  to  remain  a Frenchman,  or  become  a German. 
The  fact  is,  he  emigrated  from  Alsace  before  the  time 
within  which  he  could  optate  had  expired.  Upon  re- 
turn, the  treaty  of  1868  between  the  North  German 
Union  and  the  United  States  is  applied  which  had  not 
been  extended  to  these  provinces,  except  by  implica- 
tion and  was  adjudged  accordingly. 

The  question  of  the  application  of  the  treaty  was 
still  open  as  between  the  United  States  and  Germany. 
Subsequent  to  this,  arose  a similar  case,  that  of  Jacques 
Leob,  which  was  under  consideration  at  this  time  in 
1881  by  the  German  government.  The  decision  was, 
that  “ Leob  is  no  longer  a citizen  of  Alsace-Lorraine,” 
It  is  difficult  to  see  how  the  German  government  could 
apply  the  rules,  which  governed  in  Germany,  prior  to 
the  annexation  of  Alsace-Lorraine  and  were  applicable 
to  the  natives  of  Germany,  to  natives  of  France,  as 
were  the  inhabitants  of  these  provinces  at  the  time  of 
the  annexation.  The  obligations,  which  arise  in  Ger- 
many for  reason  of  birth  in  that  country,  certainly 
were  not  applicable  to  natives  of  France  at  the  time  of 
their  birth  in  France.  Therefore,  any  such  obligations, 
incumbent  on  natives  of  Germany  for  reason  of  birth 
in  Germany,  should  not  become  applicable  to  the  natives 
of  France,  who  by  annexation  are  separated  from  the 
country  of  their  birth.  And  although  such  a native  of 
France  may  be  given  the  right  to  optate,  yet,  should 


IN  THE  UNITED  STATES. 


213 


lie  optate  to  become  a citizen  of  Germany,  would 
this  throw  off  any  obligations  which  he  might  be 
under,  as  a native  of  France,  to  the  government  of 
France  ? 

Certainly  it  would  do  so,  were  the  annexation  by 
treaty  as  was  the  case  in  1871.  By  this  a citizen  of 
France  would  be  relieved  of  any  obligations  to  the 
French  government.  Would  it,  however,  work  such  a 
change  as  to  oblige  such  a person  to  assume  obligations 
incumbent  on  Germans,  natives  of  Germany,  for  reason 
of  birth  in  that  country  ? It  would  not.  The  annexa- 
tion by  treaty  is  equivalent  to  an  authorized  right  of 
departure  to  the  citizens  of  the  country  annexed,  and 
with  the  privilege  of  an  option  to  become  German  citi- 
zens, which  option  such  a native  of  France  saw  fit  to 
exercise.  He  thus  becomes  a naturalized  citizen  of 
Germany  and  assumes  burdens,  with  the  enjoyment  of 
rights  and  privileges,  such  as  the  laws  of  Germany  then 
give  him.  His  position  is  precisely  the  same  as  that 
of  any  alien,  who  becomes  a citizen  of  Germany  by 
naturalization. 

A further  question  arises  under  the  report  in  this 
case.  How  could  Germany  have  any  claims  on  Block  ? 
By  the  treaty  of  annexation.  Block,  as  a native  of 
France,  was  given  until  October  1, 1872,  within  which 
to  optate,  and  until  he  did  decide ; during  that  time 
he  remained  a citizen  of  France.  He  emigrated  to  the 
United  States  in  September,  1872,  and  did  so  as  a 
French  citizen  and  not  as  a German,  and  the  Geruian 
government  had  no  claims  upon  him  prior  to  his  de- 
parture. Upon  this  ground,  it  could  readily  have  been 
decided  that  he  was  a French  emigrant,  naturalized  in 


214: 


THE  LAW  OF  CITIZENSHIP 


tlie  United  States,  and  when  he  went  to  Germany  he 
went  as  an  alien. 

Case  of  Jeanne  Pierre  Schang. 

Born  in  Alsace  in  1853.  Emigrated  at  the  age  of 
fifteen,  in  1868,  to  the  United  States;  was  naturalized 
in  1880.  While  in  the  United  States  he  was  fined, 
and  levy  was  made  on  his  share  in  his  father’s  estate, 
for  neglect  to  perform  military  service  to  the  German 
government.  After  investigation,  it  was  decided  by 
the  German  authorities  that  Schang,  having  emigrated 
before  the  annexation  of  Alsace  Lorraine  to  Germany, 
the  fine  should  be  remitted.  P.  R.  of  U.  S.,  1881,  p. 
473. 

Case  of  Labard  Rosenwald. 

Born  in  Alsace  in  1854.  Emigrated  to  the  United 
States  in  1872;  was  naturalized  in  November,  1878, 
and  returned  to  Germany  on  a visit  in  1879.  In  May, 

1880,  he  was  notified  by  the  authorities  to  leave  the 
country.  The  German  authorities  did  not  claim  that 
he  was  a German  citizen  ; he  had  emigrated  subsequent 
to  the  annexation  of  the  provinces  to  Germany,  but 
within  the  year  within  which  citizens  of  Alsace  and 
Lorraine  should  optate  to  remain  French  subjects  or 
become  Germans.  Nor  was  it  held  that  former  citizens 
of  Alsace  and  Lorraine  might  become  citizens  of  other 
countries,  under  the  treaty.  Rosenwald  was  allowed 
to  remain  the  limit  of  two  years,  as  stipulated  by  the 
naturalization  treaty  between  the  United  States  and 
the  German  states,  which  was  extended  to  the  prov- 
inces of  Alsace  and  Lorraine  in  1873.  F.  R.  of  U.  S., 

1881,  p.  474. 


IN  THE  UNITED  STATES. 


215 


Case  of  Aloys  Gehres. 

Born  in  Alsace-Lorraine  in  1856.  Emigrated  to  the 
United  States  in  1872;  was  naturalized  in  1877. 
While  in  the  United  States  he  petitioned  for  remission 
of  a fine  imposed  for  non-fulfillment  of  military  duty 
to  the  German  government.  At  time  of  emigration, 
the  term  within  which  to  optate,  as  fixed  by  the  Ger- 
man law,  whether  to  remain  French,  or  become  German 
subjects,  had  not  expired.  The  fine  was  remitted.  F. 
R.  of  U.  S.,  1881,  p.  474. 


Case  op  Nicholas  Victor  Gabriel. 

Born  in  Alsace  in  1853.  Emigrated  to  the  United 
States  September  10,  1872,  and  was  naturalized 
June  8,  1880,  and  remained  in  the  United  States. 
After  his  departure  he  was  fined  for  neglect  of  military 
duty.  While  still  in  the  United  States,  he  petitioned 
to  have  the  fine  removed.  This  was  denied  by  the 
German  government,  which  held  that  he  was  still  a 
German  subject,  and  the  fine  could  not  be  remitted. 

The  policy,  and  consequently  the  law,'  which  had 
governed  in  the  United  States  in  matters  of  annexation 
by  purchase  or  otherwise,  and  to  which  acquiescence 
had  been  given  by  other  nations,  so  that  it  had  be- 
come a rule  of  international  law,  was  to  allow  the  in- 
habitants of  the  territory  thus  annexed,  to  become  citi- 
zens of  the  United  States,  or  to  remain  aliens.  F.  R. 
of  U.  S.,  1881,  p.  475. 

In  the  year  1803,  the  republic  of  France  and  the 
United  States  both  stipulated,  as  to  Louisiana,  that 
the  inhabitants  of  the  Louisiana  territory  should  be 
incorporated  into  the  Union  of  the  United  States  and 


216 


THE  LAW  OF  CITIZENSHIP 


admitted  as  soon  as  possible,  according  to  the  prin- 
ciples of  the  federal  constitution,  to  the  enjoyment  of 
all  the  rights,  advantages  and  immunities  of  citizens 
of  the  United  States ; and  in  the  meantime  they  shall 
be  maintained  and  protected  in  the  free  enjoyment  of 
their  liberty,  property  and  religion  which  they  profess.” 

Under  this  rule,  the  French  inhabitant  remained  a 
Frenchman  until  he  was  admitted  to  citizenship  by 
the  law  of  the  United  States. 

In  the  year  1819,  the  kingdom  of  Spain  and  the 
United  States  both  stipulated,  as  to  Florida,  that  the 
inhabitants  of  the  territories  which  Spain  cedes  to  the 
United  States  shall  be  incorporated  in  the  union  as 
soon  as  may  be  consistent  with  the  principles  of  the 
federal  constitution. 

Under  this  rule,  the  Spanish  inhabitant  remained  a 
Spaniard,  until  he  complied  with  the  law  of  the 
United  States  for  admission  of  aliens  to  citizenship. 

In  the  year  1848  with  Mexico,  it  was  stipulated, 
that  the  Mexicans  in  the  ceded  territories  — “ those 
who  shall  prefer  to  remain  in  the  said  territories,  may 
either  retain  the  title  and  rights  of  Mexican  citizens  or 
acquire  those  of  citizens  of  the  United  States.” 

Until  they  had  acquired  the  rights  of  citizens  of  the 
United  States,  they  remained  as  Mexican  citizens. 

In  the  year  1867  it  was  stipulated  in  the  treaty 
with  Russia  on  the  cession  of  Alaska  to  the  United 
States  “ the  inhabitants  of  the  ceded  territory  accord- 
ing to  their  choice  reserving  their  natural  allegiance, 
may  return  to  Russia  within  three  years,  but  if  they 
should  prefer  to  remain  in  the  ceded  territory  they 
shall  be  admitted  to  the  enjoyment  of  all  rights,  ad- 


IN  THE  UNITED  STATES. 


217 


vantages  and  immunities  of  citizens  of  tlie  United 
States,  and  shall  be  protected  in  the  free  enjoyment  of 
their  liberty,  property  and  religion.” 

Under  this  rule  the  Alaskan  remained  a Russian 
subject  for  three  years  ; at  the  expiration  of  that  time 
to  retain  Russian  citizenship,  he  must  leave  Alaska 
and  take  up  his  domicile  within  the  Russian  empire. 
This  was  not  optional ; it  was  obligatory.  The 
Alaskan,  if  he  did  not  return  to  Russia,  lost  his 
Russian  citizenship  and  became  by  force  of  the  treaty 
an  American  citizen. 

The  principle  is  the  acquisition  of  territory,  which 
may  be  done  by  any  of  the  known  ways,  by  which 
private  property  is  acquired  by  individuals.  Halleck 
Int.  Law,  p.  75. 

The  custody  of  the  persons  on  the  territory  does 
not  pass  by  a cession  of  the  control  of  the  territory. 

Case  of  Andrew  Klam. 

Born  in  Alsace  in  1853.  Elected  to  be  a French 
citizen  in  1872;  he  entered  the  French  army;  emi- 
grated to  the  United  States  in  1874,  where  he  was 
naturalized  in  1880.  He  was  fined  for  non-perform- 
ance of  military  duty  in  Germany.  Upon  investiga- 
tion, it  was  held  that  his  name  be  taken  from  the 
army-roll  in  Germany,  but  that  the  fine  remain.  F.  R. 
of  U.  S.,  1883,  p.  391. 

Case  of  C.  L.  Gteorge. 

His  father,  Peter  George,  a native  of  Germany,  came 
to  the  United  States  in  1840 ; was  naturalized  in  1848 ; 
returned  to  Germany  in  1851,  and  married  there. 
The  son  was  born  in  Alsace-Lorraine  in  1859,  that  is, 
28 


218 


THE  LAW  OF  CITIZENSHIP 


after  his  father  had  been  residing  there  eight  years. 
Both  father  and  son  continued  to  reside  there,  until 
1875,  the  son  being  then  sixteen  years  of  age,  when  they 
came  to  the  United  States.  In  1884,  the  son  returned 
to  Germany,  and  was  held  for  military  duty,  and  im- 
prisoned. It  appeared  that  prior  to  his  return,  he 
took  out  naturalization  papers  on  his  own  account. 
The  German  authorities  held  that  he  owed  allegiance 
to  Germany.  This  was  not  assented  to  by  the  United 
States,  for  reason  that  having  been  born  abroad  of  an 
American  citizen  he  followed  the  citizenship  of  the 
parent  with  the  right  to  elect  upon  reaching  his 
majority.  F.  B.  of  U.  S.,  1886,  pp.  317,  325,  327. 

WITH  NORWAY  AND  SWEDEN. 

Ca.se  of  C.  M.  Cedergreen. 

Born  in  Sweden  in  1845.  He  emigrated  to  the 
United  States  in  1864,  and  was  naturalized  as  a citizen 
of  the  United  States  in  1880,  having  taken  out  his 
preliminary  papers  in  1877. 

In  1881,  he  returned  to  Sweden  on  a temporary  visit ; 
was  called  on  to  pay  a fine  for  evasion  of  military 
duty.  This  he  did  not  pay  upon  demand,  and  he  was 
ordered  to  report  for  duty.  At  this  time  he  had  been 
in  the  country  less  than  a year  and  had  expressed  his 
purpose  to  return  to  the  United  States  within  a few 
months. 

It  was  held  by  the  Swedish  authorities  that  Ceder- 
green should  be  stricken  from  the  military  lists,  as  he 
was  undisputably  an  American  citizen,  but  as  he  had 
not  taken  his  first  step  to  naturalization  until  1877,  his 
naturalization  could  not  have  a retroactive  effect  and 


IN  THE  UNITED  STATES. 


219 


that,  therefore,  he  was  still  liable  to  Sweden  for  his 
military  fine  imposed  for  his  prior  delinquency.” 

This  position  was  not  tenable  under  the  treaty  of 
naturalization  between  the  two  countries,  and  the 
practice ; and  after  discussion,  it  was  conceded  by  the 
Swedish  government  that  where  there  was  no  military 
liability  at  and  before  the  date  of  emigration,  there 
could  be  no  claim  upon  Cedergreen. 

The  age  for  service  is  twenty-one  in  Sweden,  and 
Cedergreen  was  nineteen  when  he  emigrated  ; there- 
fore, the  fine  was  remitted.  F.  R.  of  U.  S.,  1882,  p. 
488. 

Case  op  Peder  Sigbjornsen. 

Born  in  Norway.  Emigrated  to  the  United  States 
in  1871,  where  he  resided  eight  years,  and  became  a 
naturalized  citizen  of  the  United  States.  In  1879  he 
returned  to  Norway,  and  in  the  spring  of  1880  was 
called  upon  for  military  service.  For  non-performance 
of  his  duty,  he  was  fined  and  paid  the  fine.  Later  in 
the  year,  he  was  informed  that  he  must  perform  mili- 
tary service  as  a Norwegian  subject.  He  asked  for 
protection  from  the  United  States.  It  was  held  : “By 
the  express  terms  of  the  treaty  of  1869,  Sigbjornsen 
could  remain  two  years  in  Norway,  without  rendering 
himself  liable  to  be  claimed  as  a Norwegian  subject. 
The  two  years  had  now  nearly  expired,  but  in  view  of 
the  fact  that  his  American  citizenship  had  been  dis- 
regarded for  a period  of  several  months  and  a fine  im- 
posed on  him,  it  is  agreed  that  he  may  remain  in  Nor- 
way about  two  years  and  five  months  in  all,  from  the 
date  of  his  arrival  in  Norway,  and  his  fine  was  refunded 
him.”  F.  B.  of  U S.,  1881. 


220 


THE  LAW  OF  CITIZENSHIP 


WITH  AUSTRIA. 

Case  of  Gustave  Schwetzer. 

Born  in  Austria.  He  came  to  the  United  States  in 
1851 ; became  naturalized  in  1856  ; returned  to  Austria 
in  1859,  and  has  remained  there  until  1881,  when  he 
asked  for  protection.  It  was  held  that  Mr.  Schwetzer 
had  renounced  his  American  citizenship  and  was  not 
entitled  to  protection.  F.  B.  of  U.  S.,  1881,  pp.  30, 52. 

If  the  treaty  of  1870  is  to  be  considered  the  criterion 
of  the  laws  of  both  the  contracting  parties,  with  Austria 
as  well  as  the  United  States,  then  Schwetzer  remained 
and  was  an  alien  in  1881,  to  Austria.  Under  article 
IV,  it  is  held  that  a naturalized  citizen  of  the  United 
States,  native  of  Austria,  shall  not  be  constrained  to 
resume  his  former  citzenship ; “ yet,  if  he  shall,  of  his 
own  accord,  re-acquire  it  and  renounce  the  citizenship 
obtained  by  naturalization,  such  a renunciation  is  allow- 
able and  no  fixed  period  of  residence  shall  be  required 
for  the  recognition  of  his  recovery  of  citizenship  in  his 
original  country.” 

This  being  the  law  of  Austria  applicable  to  the  case, 
that  country  would  continue  to  recognize  Schwetzer  as 
a citizen  of  the  United  States  and  the  United  States 
would  continue  to  refuse  him  protection  as  an  American 
citizen. 


Case  op  Vitus  Taxacher. 

Born  in  Austria.  When  he  reached  the  requisite  age 
for  military  duty  he  reported  and  was  put  back  for  one 
year.  During  this  time  he  emigrated  to  the  United 
States ; resided  there  more  than  five  years,  and  then 
returned  to  Austria.  He  was  arrested  and  impressed 


IN  THE  UNITED  STATES. 


221 


in  the  service.  Upon  investigation,  it  was  held  that 
he  was  an  American  citizen,  and  the  Austrian  authori- 
ties released  him.  F.  R.  of  U.  S.,  1884,  pp.  9,  10. 

Case  op  Louis  Feinknopp. 

Born  in  Austria  in  1860.  In  1876  he  emigrated  to 
the  United  States,  where  he  became  a naturalized  citi- 
zen of  the  United  States,  and  then  returned  to  Austria, 
where  he  was  impressed  into  the  military  service.  It 
was  held  by  the  Austrian  authorities,  that  he  was  an 
American  citizen,  and  was,  therefore,  discharged.  F. 
R.  of  U.  S.,  1885,  pp.  5,  27. 

Case  op  Mathien  Arlich. 

Born  in  Austria.  He  emigrated  to  the  United  States, 
and  became  a naturalized  citizen  of  the  United  States. 
After  a residence  of  some  years  in  the  United  States, 
he  left  that  country  and  took  up  his  abode  in  Turkey, 
where  he  resided  for  fifteen  years,  and  then  made  a 
demand  on  the  government  of  the  United  States  for 
protection.  It  was  held  that  the  same  principles  ap- 
plied as  if  he  had  returned  to  his  native  country, 
namely  to  Austria.  The  case  was  further  considered 
as  follows  : Among  the  tests  which  may  be  applied 
to  determine  the  intent  of  a naturalized  person  who 
resides  continuously  abroad,  the  fact  of  payment  by 
such  person  of  the  income  and  excise  taxes,  which  have 
been  imposed  by  law  upon  American  citizens,  will  be 
an  important  aid.  Inquiry  should  be  made  when,  and 
in  what  assessment  district,  the  returns  required  by  the 
internal  revenue  laws  have  been  made,  where,  and  to 
whom  the  taxes  have  been  paid. 

The  omission  to  have  made  the  returns  or  to  have 


222 


THE  LAW  OF  CITIZENSHIP 


paid  any  tax,  would  necessarily  cast  grave  suspicion 
upon  tlie  claim  of  the  party  applying  for  the  protection 
of  a government,  from  whose  support  he  has  withheld 
the  contributions  required  of  all  its  citizens,  whether 
resident  at  home  or  abroad ; and  if  such  omission  has 
been  long  continued,  it  will,  as  a general  rule,  justify 
the  refusal  of  a recognition  of  the  claim  to  protection. 
F.  R.  of  U.  S.,  1871,  p.  888. 

WITH  EQUADOR. 

The  case  of  Julio  Romano  Santos,  a native  of  Equa- 
dor.  He  emigrated  to  the  United  States,  where  in 
July,  1874,  he  became  a naturalized  citizen,  and  subse- 
quently returned  to  Equador  in  the  capacity  of  agent 
for  American  merchants.  He  was  charged  with  com- 
plicity in  a revolutionary  movement,  and  consequently 
imprisoned.  The  Eqiiadorian  authorities  took  the  po- 
sition that  according  to  the  treaty  of  naturalization  of 
1872,  articles  2 and  3,  he  had  lost  his  American  citi- 
zenship. The  article  2 is  as  follows : If  a naturalized 
citizen  of  either  country  shall  renew  his  residence  in 
that  where  he  was  born,  without  an  intention  of  re- 
turning to  that  where  he  was  naturalized,  he  shall  be 
held  to  have  re-assumed  the  obligations  of  his  original 
citizenship,  and  to  have  renounced  that  which  he  had 
obtained  by  naturalization.  The  article  3 is  as  follows : 
A residence  of  more  than  two  years  of  a naturalized 
citizen  shall  be  construed  as  an  intention  on  his  part 
to  stay  there  without  returning  to  the  country  where 
he  was  naturalized.  This  presumption,  however,  may 
be  rebutted  by  evidence  to  the  contrary. 

The  authorities  of  the  United  States  laid  stress  on 


IN  THE  UNITED  STATES. 


223 


tlie  terms  of  tlie  treaty,  this  presumption,  however, 
may  be  rebutted  by  evidence  to  the  contrary.”  This 
is  equivalent  to  saying,  that  when  such  a citizen’s  in- 
tention to  return  to  the  United  States  is  shown,  his 
citizenship  of  the  United  States  remains,  It  is  true 
that  while  Mr.  Santos,  though  a domiciled  citizen  of 
the  United  States  is  resident  in  Equador,  he  is  subject 
to  the  penal  laws  of  Equador,  and  that  mere  alienage 
or  United  States  citizenship  will  not  be  a defense  if 
he  be  tried  for  treason,  or  other  offense  against  Equa- 
dor. F.  R.  of  U.  S.,  1886,  p.  254. 

DEDUCTIONS  FROM  THE  PRACTICE  UNDER  THE  NATURALI- 
ZATION TREATIES.  

The  two  important  questions,  which  are  to  be  de- 
volved from  the  practice,  and  which  are  alone  to  be 
devolved  from  the  practice  with  the  first  group  of 
states  with  which  the  United  States  entered  into  natur- 
alization treaties,  are  first,  that  of  obligations  unfulfilled 
before  departure  from  the  country  of  origin,  and  sec- 
ond, the  presumption  of  loss  of  citizenship  by  a con- 
tinued two  years’  residence  in  the  country  of  origin. 

First,  obligations.  It  is  not  strictly  held  that 
every  German,  for  reason  of  his  birth  in  Germany,  is 
bound  to  perform  military  duty.  The  right  of  ex- 
patriation is  recognized  by  both  countries  as  a fuu da- 
mental  right.  At  the  time  of  the  discussion  of  the 
treaties  in  1868  in  the  German  parliament.  Prince 
Bismarck  remarked  in  debate  on  the  question  ^That 
whoever  bona  fide  emigrated  with  the  intent  to 
establish  a new  home  for  himself  and  his,  elsewhere, 
could  not  be  called  upon  to  perform  duties  arising 


224 


THE  LAW  OF  CITIZENSHIP 


from  tlie  fact  of  liis  birth  in  the  North  German  union.” 
Hon.  George  Bancroft,  then  United  States  minister  at 
Berlin,  wrote  to  Mr.  Seward,  then  secretary  of  state, 
the  right  of  expatriation  is  acknowledged  by  the 
laws  of  both  countries,”  meaning  the  North  German 
union  and  the  United  States. 

The  best  writers  in  the  United  States  have  main- 
tained this  position : The  right  of  voluntary  expatri- 
ation exists  only  in  time  of  peace  and  for  peaceful  and 
lav\Tul  purposes  ” Halleck,  p.  133. 

The  relation  of  subject  to  sovereign  is  a voluntary 
one  to  be  determined  by  emigration,  but  a state  is  not 
bound  to  allow  the  departure  of  its  subjects,  until  all 
pre-existing  obligations  have  been  fulfilled.”  Woolsey 
Int.  Law. 

The  question  has  two  elements : first,  the  fulfillment 
of  pre-existing  obligations.  These  obligations  must 
be  reasonable  and  not  continuing  in  their  nature  ; that 
is,  they  must  be  such  as  can  be  fulfilled  and  the 
emigrant  thus  prepare  himself  for  a legal  departure, 
for  this  is  the  very  quintessence  of  a legal  change  of 
citizenship  such  as  will  be  respected  in  intei*national 
common  law.  The  obligation  as  enjoined  by  Germany 
is  susceptible  of  fulfillment.  When  a determined  age 
is  reached  the  subject  becomes  liable  for  the  perform- 
ance of  a certain  duty  to  the  country ; prior  to  that 
aofe  the  oblie^ation  does  not  arise,  or  if  it  does  arise  the 
practice  has  shown  that  any  penalty  imposed  has  been 
abated.  Therefore,  the  stringency  of  a supposed 
existing  rule  that  the  obligation  is  for  reason  of  birth 
and  continuing  in  its  nature,  until  fulfilled,  may  be 
held  to  be  abolished,  but  not  unless  secured.  The 


IN  THE  UNITED  STATES. 


225 


further  element  is  coupled  with  it,  that  the  departure 
prior  to  reaching  the  age  at  which  active  service  in 
the  army  is  demanded,  has  been  in  good  faith  and  con- 
sistent with  such  principles  as  govern  an  honest  change 
of  citizenship.  The  practice  is  and  has  been  not  to 
prevent  or  to  interfere  with  the  exercise  of  the  right 
of  expatriation  when  made  in  good  faith,  and  this 
question  of  good  faith  is  one  to  be  interpreted  from 
the  acts  of  the  party.  These  elements  are  purely 
within  the  scope  of  investigation  of  the  authorities  of 
the  country  of  the  emigrant’s  origin. 

The  cases  are  different  when  the  departure  is  made 
without  authority  after  the  age  for  duty  in  the  army 
has  been  reached.  Here  there  can  be  no  question  of 
good  intent.  It  goes  without  saying,  that  the  depart- 
ure is  mala  fide,  and  no  argument  should  be  offered  in 
mitigation  of  such  an  act  in  behalf  of  an  emigrant  who 
departs  under  such  circumstances.  Such  cases  are 
construed  to  be  desertion  from  the  flag,  and  for  such 
cases  punishment  should  be  administered. 

There  has  been  some  misconception  of  the  practice 
in  both  the  cases  of  departure  before  and  after  reach- 
ing the  age  requisite  for  military  service.  These  rules 
are  not  inconsistent  with  the  international  common-law 
practice.  They  conform  to  the  practice  as  recognized 
prior  to  the  ratification  of  the  treaty.  The  authorities 
have  ever  maintained  this  practice.  It  has  been  error 
on  the  part  of  the  United  States  that  from  1860  to 
1865  it  failed  to  enforce  the  rule  in  restraint  of  de- 
parture of  many  of  its  citizens  at  a time  when  all 
citizens  were  “under  the  flag.”  Had  it  done  so  at 
that  time,  the  spirit  and  purpose  of  the  treaty  stipu- 
29 


226 


THE  LAW  OF  CITIZENSHIP 


lations  of  1868  would  liave  been  better  under- 
stood. 

Second,  the  joresumption  of  loss  of  citizenship  after  a 
continued  two  years’  residence  in  the  country  of  origin. 
This  rule  has  been  enforced  with  much  rigidity. 
From  the  practice  it  would  appear  that  the  United 
States  has  entertained  the  enforcement  of  the  rule 
by  its  expressions  of  the  import  of  its  principle  of 
naturalization,  by  which  citizenship  is  conferred  on 
aliens  to  the  effect  that  they  shall  reside  in  the  United 
States. 

This  rule  is  not  intended  to  interfere  with  the  proper 
right  and  exercise  of  locomotion  for  legitimate  pur- 
poses, but  as  a test  of  good  faith  in  the  applicant  in 
order  that  he  shall  not  use  his  newly  conferred  citizen- 
ship as  a matter  of  convenience,  and  thus  avoid  duties 
to  both  the  country  of  his  origin  and  that  of  his  adop- 
tion. Citizenship  carries  within  it  an  idea  of  per- 
manency and  not  of  transient  conveyance  by  which  an 
evasion  of  duties  is  rendered  possible.  It  will  be  seen 
from  the  practice  that  in  some  cases  the  change  of 
citizenship  was  made  with  a purely  selfish  intent  and 
with  no  good  intent  either  towards  the  citizens  of 
Germany,  or  with  the  citizens  of  the  United  States.  It 
is  for  the  citizens  of  Germany,  by  their  proper  authori- 
ties, to  judge  of  this  intent  in  one  regard  and  for  the 
citizens  of  the  United  States,  by  their  proper  authorities, 
to  judge  of  this  intent  in  another  regard.  For  the 
first  to  pass  upon  the  good  faith  of  the  departure,  and 
for  the  second  to  pass  upon  the  good  faith  exercised 
in  the  acquisition  of  the  new  citizenship.  It  is  not  a 
mere  and  empty  formality,  a simple  acting  under  the 


IN  THE  UNITED  STATES. 


227 


naturalization  law  by  the  emigrant  and  then  a speedy 
departure  to  tbe  country  of  bis  origin,  and  then  de- 
mand a release  from  all  obligations  to  that  country, 
and  there  take  up  his  residence  with  an  easy  turning 
his  back  on  the  country  of  his  adoption,  which  should 
be  held  as  a change  of  citizenship.  Such  is  not,  nor 
has  it  been,  the  practice  under  the  international  com- 
mon law.  The  change  must  be  with  a purpose  of 
jDermanency  and  not  for  temporary  use. 

When  made  with  this  intent  and  the  intent  is  ad- 
missible of  this  interpretation,  a demand  for  protection 
should  be  entertained. 

By  the  rule  of  return,  however,  to  the  country  of 
origin  in  the  practice  under  the  treaties,  there  has  been 
a want  of  consideration  of  the  question  of  good  faith 
in  the  change  of  citizenship,  and  the  intent  of  making 
the  same  for  a permanent  purpose  has  been  disre- 
garded. The  practice  has  been  unfortunate  in  this, 
that  no  provision  has  been  made  for  an  expression  of 
volition.  The  change  of  citizenship  has  been  implied 
from  the  act  of  the  citizen  returning  to  the  country  of 
his  origin  and  seemingly  in  two  classes  of  cases.  The 
.first,  when  it  was  possible  to  infer  a renunciation  of 
citizenship  in  the  United  States  by  a two  years’  resi- 
dence in  Germany  and  thereby  enforce  the  performance 
of  actual  military  duty  on  the  citizen,  who  had  resided 
in  the  country  of  his  origin  for  that  space  of  time  con- 
tinuously, and  second,  when  the  application  of  the  rule 
to  a father  would  thereby  effect  a change  in  the  citizen- 
ship of  a minor  son,  who  was  of  age  to  perform  military 
service. 

Such  practice  is  not  in  conformity  with  the  practice 


228 


THE  LAW  OF  CITIZENSHIP 


with  other  countries  and  is  not  in  accord  with  the  rule 
laid  down  in  9 Op.  Atty.-Genls.  356,  that  “ in  regard  to 
the  protection  of  our  citizens  in  their  rights  at  home 
and  abroad,  we  have  in  the  United  States  no  law  which 
divides  them  into  classes  or  makes  any  difference  Avhat- 
ever  between  them.” 

The  practice  under  the  treaty  would  seem  to  be  that 
we  admit  of  a class  of  our  citizens  who,  born  in  Ger- 
many, naturalized  in  the  United  States,  return  to 
Germany,  and  there  reside  for  two  years  continuously, 
lose  their  citizenship  in  the  United  States. 

We  have  no  other  citizens  who  are  subject  to  such 
rules ; all  other  citizens  of  the  United  States  may  reside 
in  Germany  for  that  period  of  time,  and  for  a longer 
period  without  the  application  of  the  rule  as  laid  down 
in  the  treaty. 

The  rule  is  not  in  accordance  with  the  principles  of 
international  common  law. 

THE  RIGHT  OF  EXPULSION  AS  BETWEEN  GERMANY  AND 
THE  UNITED  STATES. 

For  a series  of  years  prior  to  1885  there  had  been 
prolonged  discussions  over  the  clause  in  the  naturaliza- 
tion treaty  of  1868  between  the  two  countries  as  re- 
gards the  practice  as  to  the  two  years’  uninterrupted 
residence  in  Germany  of  a former  German  subject 
naturalized  in  the  United  States,  and  who  returned  to 
the  country  of  his  origin,  to  Germany. 

The  German  authorities  construed  the  two  years’ 
residence  to  be  a renunciation  of  the  American  citizen- 
ship and  a re-acquisition  of  German  nationality.  They 
carried  the  construction  still  farther  and  made  it  ap- 
plicable to  the  minor  children  of  such  Germans  who 


IN  THE  UNITED  STATES. 


229 


returned  to  Germany,  and  there,  after  having  been 
naturalized  in  the  United  States,  took  up  their  resi- 
dence and  continued  the  same  uninterruptedly  for  a 
period  of  two  years. 

The  underlying  principle  which  governed  the  legisla- 
tion of  the  German  empire  was  and  is,  that  minor 
children  standing  under  paternal  control  share  the 
nationality  of  the  father.  The  same  is  the  American 
rule,  and  in  this  regard  there  was  and  is  no  conflict. 

This  rule  of  construction  was  applied  to  the  two 
years’  clause  in  the  treaty  in  its  relation  and  effect  on 
the  status  of  minor  children  of  former  Germans,  natural- 
ized in  the  United  States. 

Taking  the  two  rules,  the  first,  that  the  uninterrupted 
residence  in  the  country  of  origin  was  a renunciation 
of  American  citizenship,  and  second,  that  its  applica- 
tion should  be  made  to  the  status  of  minor  children  of 
such  former  Germans,  the  practice  became  severe,  be- 
cause, by  virtue  of  the  enforcement  of  these  rules,  such 
minor  children,  when  they  reached  the  requisite  mili- 
tary age,  were  called  upon  to  perform  military  service  ; 
this  was  considered  to  be  a great  hardship,  and  gave 
rise  to  continuous  remonstrances  on  the  part  of  the 
government  of  the  United  States,  in  which  it  was,  at 
times,  successful,  and  at  others,  was  unsuccessful  in 
affording  relief  to  such  persons,  who  claimed  its  pro- 
tection. It  was  partially  with  a view  of  avoiding  this 
unpleasantness,  but  more  for  its  own  protection  that 
the  German  authorities  resorted  to  the  idea,  not  of  en- 
forcing the  performance  of  military  service,  but  of 
expulsion  from  the  country,  and  to  include  within  the 
rule  of  expulsion  other  naturalized  American  citizens 


230 


THE  LAW  OF  CITIZENSHIP 


of  former  German  nationality,  who  should  take  up 
their  residence  within  the  empire. 

In  order  to  approach  the  assertion  of  the  right  to 
expel  such  citizens,  two  reasons  were  given.  The  first, 
the  internationally  recognized  right  of  every  state  to 
remove  foreigners  from  its  territory,  when  their  further 
sojourn  in  the  country  appears  to  be  undesirable  upon 
grounds  of  the  welfare  of  the  state. 

The  second,  a resort  to  the  systematic  legal  jugglery, 
by  which  a principle  of  law  was  evolved,  which  was 
in  direct  antagonism  to  the  principles  which  governed 
in  that  regard  in  both  countries. 

It  was  this,  that  children  of  former  German  subjects, 
naturalized  in  the  United  States,  who  returned  with 
their  parents  or  otherwise  to  Germany,  should  be  held 
to  retain  their  American  citizenship,  although  their 
parents  should  by  an  act  of  their  own,  or  by  a two 
years’  uninterrupted  residence  on  return  to  their  country 
of  origin,  re-acquire  their  former  German  citizenship. 
That  is,  that  the  father  might  re-acquire  his  former 
nationality,  and  his  minor  child  should  retain  his 
American  citizenship,  which  he  had  acquired  by  birth 
in  the  United  States,  as  the  son  of  an  American  citizen 
as  an  inheritance  from  him.  The  father  became  a Ger- 
man again,  and  his  son  remains  an  American  citizen. 

The  German  foreign  office  took  this  ground  : “ As 

regards  the  fathers  of  such  sons,  no  doubt  can  exist 
that  they  are  to  be  regarded  as  having  renounced  their 
naturalization  by  a longer  sojourn  than  two  years  pur- 
suant to  the  treaties  regulating  nationality  of  1868, 
concluded  with  the  United  States.  The  provisions  of 
these  treaties  do  not,  however,  extend  to  the  minor 


IN  THE  UNITED  STATES. 


231 


children  of  persons  naturalized  in  America.  The  rules 
there  prescribed  cannot,  therefore,  find  any  application 
to  the  legal  status  of  these  children.” 

This  had  not  been  the  practice  heretofore,  as  has 
been  shown  by  the  cases  cited.  It  has  been  held  as 
the  cases  show,  that  the  treaty  was  applicable  to  the 
status  of  minor  children. 

The  authorities  of  the  United  States  acquiesced  in 
the  view  as  follows : That  the  children  of  naturalized 
citizens  born  in  the  United  States  stood  on  the  same 
ground  as  native  Americans  of  American  parentage. 

This  rule  is  just  as  far  as  it  goes.  It  does  not  main- 
tain, however,  that  a change  in  the  citizenship  of  the 
parent  fails  to  carry  with  it  a change  in  the  citizenship 
of  the  minor  child.  This  is  the  rule  of  international 
common  law  well  established  and  recognized.  The 
minor  child,  upon  reaching  his  majority,  may  then  elect 
of  what  country  he  will  be  a citizen,  and  then  comply 
with  the  law  in  order  to  perfect  his  citizenship. 

Under  these  rules  the  German  government  has  ex- 
pelled such  citizens  from  Germany. 

Acting  in  direct  violation  of  the  German  rule  of 
citizenship  by  descent,  and  in  contradiction  of  the  rec- 
ognized international  common -law  rule,  this  position 
was  assumed  by  the  German  government,  and  the  ex- 
pulsion of  such  American  citizens  followed.  Why  any 
distinction  should  be  allowed  as  between  American 
citizens,  it  is  difficult  to  determine.  The  government 
of  the  United  States  took  the  position  that  under  such 
a rule  the  German  government  might  expel  any  Amer- 
can  citizen,  whether  of  German  extraction  or  not.  This 
is  true  under  the  principle  of  the  right  of  a state  to 


232 


THE  LAW  OF  CITIZENSHIP 


preserve  its  own  welfare,  and  even  then  the  rule  must 
be  a23plied  only  for  good  reasons  and  with  great  cir- 
cumspection. 

This  is  not  the  trouble;  the  trouble  is  found  in  the 
recognition  of  the  principle,  that  the  change  in  the 
citizenship  of  the  father  does  not  carry  with  it  a change 
in  the  citizenship  of  minor  children. 

EECOGNITION  OF  THE  GERMAN  RULE  BY  THE  UNITED 

STATES. 

The  doctrine  of  the  changing  of  the  infant’s  nation- 
ality with  the  nationality  and  domicile  of  the  father, 
rests  on  the  assumption  that  such  is  the  father’s  Avill, 
and  that  the  change  is  in  submission  to  his  paternal 
power.”  Secretary  Bayard  to  Mr.  Pendleton,  May  12, 
1885. 

In  a discussion  of  the  case  of  John  L.  Geist,  the 
foregoing  principle  was  announced. 

Geist  was  born  in  the  United  States  of  a father 
naturalized  in  1872,  who  subsequently  returned  to 
Germany,  taking  his  son  with  him,  where  he  resumed 
his  German  nationality.  In  his  application  for  a re-ac- 
quisition of  his  former  German  citizenship,  the  father 
inserted  this  condition,  that  his  son,  John  L.  Geist, 
beino;  a native  born  citizen  of  the  United  States  and  a 
minor,  should  elect  whether  he  would  return  to  and 
take  the  nationality  of  his  birth.”  It  appeared  by  the 
certificate  of  naturalization  granted  to  him,  that  it  in- 
cluded his  wife  and  all  his  minor  children  mentioned 
by  name,  with  the  exception  of  John  L.  Geist.  The 
son,  John  L.  Geist,  was  subsequently  warned  to  leave 
the  empire,  for  reason  that  his  presence  in  Germany 
was  undesirable  to  the  welfare  of  the  state. 


IN  THE  UNITED  STATES. 


233 


This  statement  presents  the  question,  Was  or  was  not 
John  L.  Geist  a German  citizen  ? 

Mr.  Frelinghuysen  to  Mr.  Kasson,  January  15, 1885, 
lays  down  the  rule  to  be  that  during  minority  tbe 
rights  of  the  minor,  if  be  had  any  other  than  those 
possessed  by  his  father,  w^ere  at  least  suspended  and 
subject  to  the  father’s  allegiance.”  Further,  the  ah 
legiant  condition  of  the  minor  son,  while  residing 
within  the  jurisdiction  and  under  the  control  of  the 
father,  follows  that  of  the  father.  15  Op.  Atty.-Genls. 
15. 

Further : Under  ordinary  circumstances  his  status 
(John  L.  Geist),  in  both  relations  would  have  followed 
that  of  his  father,  when  his  father  returned  to  Ger- 
many from  the  United  States,  and  resumed  his  German 
nationality.  But  the  father’s  resumption  of  German 
nationality  by  its  own  terms  excluded  from  its  pur- 
view the  case  of  his  son,  John  L.  Geist.”  Secretary 
Bayard  to  Mr.  Pendleton,  May  12,  1885. 

The  position  is,  that  Geist,  by  the  act  of  the  parent, 
became  a German  citizen.  The  parent  could  not 
exclude  the  son  in  the  terms  of  his  application  for  a 
resumption  of  German  nationality.  The  mention  of 
the  names  of  his  other  minor  children  was  superfluous 
and  of  no  direct  effect. 

The  general  rule  of  public  law  is,  that  every  person 
of  full  age  has  a right  to  change  his  domicile.  Mr. 
Webster,  secretary  of  state,  to  the  president  in 
Thatcher’s  case. 

The  requirement  of  full  age  means  a person  who  has 
reached  his  majority ; at  this  time  in  life  the  law  recog- 
nizes the  existence  of  the  power  to  express  an  intent: 


234 


THE  LAW  OF  CITIZENSHIP 


to  declare  his  intent  and  by  the  declaration  to  elect 
the  state  of  which  he  will  be  a citizen. 

No  law  which  governs  the  mode  of  departure  nor 
which  governs  the  acquisition  of  citizenship  recognizes 
any  act  done  thereunder  unless  done  by  a person  of 
full  age. 

Full  age  is  majority ; when  a minor  reaches  majority 
then  he  can  act  for  himself  and  in  his  own  behalf. 

The  requirement  of  full  age  means  the  exclusion  of 
the  exercise  of  the  right  by  those  who  are  not  of  full 
age,  that  is  by  minors.  A minor  not  being  of  full  age 
cannot  by  his  own  act  change  his  nationality.  He  can 
neither  legally  depart  from  the  country  of  his  origin 
nor  can  he  legally  acquire  citizenship  in  another 
country.  His  acts  would  not  obtain  recognition  under 
the  laws  of  either  country.  The  minor  has  no  right 
which  he  can  himself  assert  in  the  exercise  of  his  own 
power  to  effect  a change  of  nationality.  During  his 
minority  he  remains  sub  potestate  patris.  This  was 
the  rule  of  the  Romans  and  has  ever  since  been  the 
rule.  He  himself  cannot  act.  The  father  can  act  and 
by  the  act  of  the  father  a change  in  the  citizenship  of 
the  minor  be  effected.  This  act  of  the  father  must  be 
a perfect  act  of  his  and  his  alone,  as  the  head  of  his 
family,  for  his  change  of  nationality  carries  with  it  a 
change  in  the  nationality  of  the  members  of  his  family. 

The  members  of  the  family  of  which  he  is  the  head 
are  the  wife  and  the  minor  children.  Upon  the  death 
of  the  father  the  mother  does  not  become  the  head  of 
the  family  in  the  sense,  that  an  act  of  hers,  by  which 
to  change  her  nationality,  would  effect  a change  in  the 
nationality  of  her  minor  children. 


IN  THE  UNITED  STATES. 


235 


This  is  the  international  common-law  rule.  The 
rule  has  some  exceptions  which  are  local  and  which 
may  be  questioned,  when  put  into  practice  ; as  for  ex- 
ample, the  rule  in  the  United  States,  that  the  minor 
child  of  a foreigner,  who  seeks  citizenship  in  the 
United  States  must  reside  within  the  United  States. 
For  example,  a German  born  subject  cannot  emigrate 
to  the  United  States  and  there  reside  and  there  be- 
come a citizen  by  naturalization  and  by  his  act  confer 
this  citizenship  on  a minor  child,  who  has  resided  all 
the  time  in  Germany.  This  is  a local  rule,  yet  under 
it  protection  has  been  denied  to  such  minors,  when 
coming  to  age  upon  allegations  of  citizenship  by 
descent  Jfor  reason  of  the  change  made  by  the  father. 
It  is  doubtful  if  such  a rule  could  maintain  in  the 
practice  in  case  the  minor  were  in  a foreign  country 
other  than  Germany  or  the  United  States  and  German 
protection  were  denied  him  because  his  father  had 
acquired  citizenship  in  the  United  States  and  re- 
nounced his  German  nationality.  The  rule  is  not  of 
much  importance,  especially  when  it  is  possible  for 
a minor  child  to  go  to  the  United  States  one  week  be- 
fore his  father’s  naturalization  and  return  to  his  native 
country  one  week  thereafterward,  as  a full-fledged 
American  citizen,  while  still  in  his  minority  and  without 
renunciation  of  old  allegiance  or  swearing  to  the  new. 

That  such  a thing  is  possible  is  a defect  in  the 
naturalization  laws  of  the  United  States.”  Secretary 
Frelinghuysen  to  Mr.  Kasson,  January  15,  1885. 

And  yet  this  has  been  held  to  be  the  rule  with  per- 
haps a slight  deviation.  In  a question  in  which  the 
terms  “ residence  ” and  “ domicile  ” were  discussed  it  was 


236 


THE  LAW  OF  CITIZENSHIP 


decided  as  follows  in  England  : “ But  the  meaning  of 

the  word  “ residence  ” is  different  from  domicile,”  for  an 
infant  has  the  domicile  of  his  parents  until  he  attains 
his  full  age  and  does  some  act  to  acquire  a new  one, 
and  thus  his  domicile  may  be  in  a country  in  which  he 
has  never  personally  been,  whereas  “residence”  implies 
a personal  presence  at  some  time  or  other.”  Walcot  v. 
Botfield,  1 Kay,  534. 

LOCAL  RULES. 

Local  rules  which  embody  exceptions  to  the  inter- 
national common-law  rule  do  not  have  much  force  in 
the  practice. 

Every  country  has  fixed  laws  by  which  citizenship 
is  acquired  and  by  which  it  is  lost.  These  laws  are 
for  the  convenience  of  the  citizens  of  the  country,  who 
reside  within  it  and  are  such  as  they  may  deem  just 
and  proper  for  their  own  safety  as  to  admission  of 
aliens  as  citizens  and  departure  of  their  own  members 
to  acquire  citizenship  elsewhere.  These  laws  are  en- 
acted by  and  for  persons  of  full  age,  and  not  for  minors. 
The  persons  of  full  age  act  under  them,  not  minors. 
By  the  laws  of  every  country  the  minor  is  subject  to 
the  father’s  will ; he  is  under  the  paternal  power. 
This  power  the  father  cannot  delegate  to  his  minor  chil- 
dren. He  cannot  delegate  to  his  minor  child  the  power 
to  exercise  his,  the  father’s,  will,  and  thereby  effect 
a change  of  nationality,  nor  can  he,  this  minor  child, 
refuse  to  obey  the  will  of  the  father,  when  the  father 
seeks  to  effect  a change  of  nationality.  The  child  hav- 
ing no  power  to  act  for  himseK  in  this  regard,  cannot 
deny  the  existence  of  the  power  in  his  father,  by  which 


IN  THE  UNITED  STATES. 


237 


he,  the  father,  can  effect  a change  of  nationality,  and 
with  the  change  effect  a change  in  the  nationality  of 
his  minor  child. 

In  Geist’s  case  the  father  was  born  in  Germany. 
Under  German  law  the  place  of  birth  does  not  govern  ; 
nationality  is  not  acquired  for  reason  of  birth  in  a cer- 
tain locality ; the  child  takes  the  nationality  of  the 
father.  The  children  of  Germans  wheresoever  born 
in  the  world  are  Germans.  Geist’s  father  took  the 
citizenship  of  his  father  at  the  time  of  his  birth  by  de- 
scent. Bluntschli  Staatslehre,  p.  65. 

The  father  of  Geist  had  entered  into  a compact  with 
other  citizens  of  Germany  for  mutual  protection  and 
their  common  welfare. 

In  the  exercise  of  his  free  will  and  with  right  he 
emigrated  from  Germany  and  by  naturalization  in  the 
United  States  entered  into  a compact  for  mutual  pro- 
tection and  for  the  common  welfare  of  citizens  of  the 
United  States. 

He  had  with  him  when  he  entered  into  the  compact 
a minor  son  — the  son  could  not  enter  into  the  com- 
pact — he  had  not  the  power,  being  a minor  ; therefore, 
it  was  by  no  act  of  the  son  that  he  became  a citizen  of 
the  United  States.  It  was  by  the  act  of  the  father, 
who  alone  could  contract  as  the  head  of  the  family. 

The  contract  became  binding  on  the  father  immedi- 
ately upon  naturalization  and  by  implication  on  his 
wife  and  minor  children.  It  was  a contract  with  pub- 
lic right  with  the  citizens  of  the  United  States.  Blunt- 
schli Staatslehre,  p.  66. 

The  father  subsequently  returned  to  Germany  and 
there  renounced  his  American  citizenship,  taking  with 


238 


THE  LAW  OF  CITIZENSHIP 


him  his  minor  son  born  in  the  United  States.  He  ex- 
cluded from  the  purview  of  his  application  his  minor 
son. 

The  father  willed  two  things  ; first,  that  he  become  a 
German  subject ; second,  that  his  minor  son  remain  an 
American  citizen  notwithstanding  the  rule  that  ‘‘  wives 
and  minor  children  follow  as  a thing  of  course  the 
status  of  the  head  of  the  family.”  Woolsey  Int.  Law, 
p.  103. 

There  is  no  rule  for  the  second  part  of  his  wish ; he 
could  make  no  such  exception.  It  is  explained  as  fol- 
lows : ‘'The  most  charitable  view  to  take  of  the  father 
is  that  his  mind  is  partially  disordered.”  Mr.  Kasson 
to  Secretary  Frelinghuysen,  April  15,  1885. 

The  United  States  government  subsequently  took 
this  position  as  to  the  case.  The  German  government 
not  only  accepted  the  father’s  change  of  nationality, 
charged  as  it  was  with  the  reservation  of  the  son’s 
nationality  continuing  in  the  United  States,  but  by  re- 
quiring the  son  to  return  to  this  country  at  a specific 
period  the  continuance  of  the  son’s  American  nation- 
ality was  formally  conceded.”  Mr.  Bayard  to  Mr. 
Pendleton,  May  12,  1885. 

Ergo  because  the  German  government  assumed  the 
right  to  expel  Geist,  he  was  an  American  citizen.  For 
what  reason  should  he  be  expelled  ? Why  not  remain 
in  Germany?  To  admit  of  this  right  of  expulsion  as 
an  element  constituting  the  American  citizenship  of 
Geist  is  without  support  in  the  authorities.  Nor  is  the 
position  at  all  supported  by  the  authorities  that  the 
father  could  make  such  a reservation  in  his  application 
to  re-acquire  his  former  German  nationality. 


IN  THE  UNITED  STATES. 


239 


THE  ERROR  IN  THE  RULE. 

This  is  found  in  the  position  taken  by  the  German 
government  that  the  American  law  contains  no  pro- 
vision which  makes  the  renunciation  of  American 
naturalization  by  the  father  act  upon  his  minor  son 
also.  Dr.  Busch  to  Mr.  Kasson,  December  31,  1884. 

This  statement  is  in  conflict  with  the  German  and 
American  practice.  It  may  be  true  that  totidem  verbis 
the  minor  child  is  not  referred  to.  The  practice  has 
been  to  the  contrary  without  exception  in  the  interna- 
tional common  law  and  between  the  two  countries. 

EXPULSION  FROM  SCHLESWIG-HOLSTEIN. 

In  the  year  1885  a number  of  naturalized  American 
citizens  of  German  extraction  returned  to  Fohr,  an 
insular  portion  of  the  territory  of  Schleswig-Holstein. 

The  cases  were  these : Simon  Meinert  Baysen  emi- 
grated in  the  year  1863  at  the  age  of  sixteen  years  to 
the  United  States  with  a passport,  but  without  having 
been  discharged  from  Prussian  allegiance ; in  the  year 
1870  he  spent  from  two  to  three  months  on  a visit  on 
the  island  of  Fohr  and  returned  there  with  five  chil- 
dren in  1885. 

Minert  Heinrick  Biewerts,  native  of  the  same  island, 
emigrated  to  the  United  States  after  discharge  obtained 
from  his  government  at  the  age  of  sixteen  years  and 
eight  months. 

Acke  Edward  Nickelsen,  native  of  the  same  island, 
emigrated  to  the  United  States  after  discharge  obtained 
from  his  government  at  the  age  of  sixteen  years  and 
four  months. 

Ingwer  George  Jappen,  native  of  the  same  island, 


240 


THE  LAW  OF  CITIZENSHIP 


emigrated  to  the  United  States  after  discharge  obtained 
from  his  government  at  the  age  of  sixteen  years  and 
seven  months. 

Peter  Cornelius  Anderson,  native  of  the  same  island, 
emigrated  to  the  United  States  after  discharge  obtained 
from  his  government  at  the  age  of  sixteen  years  and 
eight  months. 

Peter  Jepsen,  native  of  the  same  island,  emigrated  to 
the  United  States  after  discharge  obtained  from  his 
government  at  the  age  of  sixteen  years  and  eleven 
months. 

Hans  Peter  Jessen,  native  of  the  same  island,  emi- 
grated to  the  Unied  States  after  attaining  the  mili- 
tary age  and  without  having  responded  to  the  duty  of 
presenting  himself  for  military  duty. 

Heinrick  Friedrick  Nicholas  Pohllfs,  native  of  the 
same  island,  emigrated  to  the  United  States  after  having 
attained  the  military  age  and  without  having  responded 
to  the  duty  of  presenting  himself  for  military  duty. 

Constantia  Heinrich  Edward  Eohlffs,  native  of  the 
same  island,  emigrated  to  the  United  States  after  having 
attained  the  military  age  and  without  having  re- 
sponded to  the  duty  of  presenting  himself  for  military 
duty. 

In  each  of  these  cases  the  parties  became  naturalized 
citizens  of  the  United  States,  and  subsequently  re- 
turned to  the  country  of  their  nativity. 

The  German  government,  through  Count  Bismarck, 
December  21,  1885,  laid  down  the  following  rule: 
Discharge  from  Prussian  nationality  cannot  be  refused 
in  time  of  peace,  to  persons  who  have  not  yet  reached 
the  age  of  military  liability,  which  begins  with  the 


IN  THE  UNITED  STATES. 


241 


completed  seventeenth  year  of  life.  It  was  assumed  that 
in  the  cases  of  Baysen,  Riewerts,  Nickelsen,  Jappen, 
Anderson  and  Jessen,  that  they  sought  the  discharges 
only  for  the  purpose  of  withdrawing  themselves  from 
the  performance  of  military  duty  in  Germany,  and  ex- 
pulsion ordered  from  the  country  after  sufficient  sojourn 
to  visit  relatives,  and  time  to  attend  to  any  business 
matters  claiming  their  attention.  The  government  of 
the  United  States  invoked  the  treaty  of  1828,  article 
I,  with  Prussia,  as  regards  the  rights  of  citizens  of  the 
respective  countries,  in  the  countries  of  each  other: 

They  shall  be  at  liberty  to  sojourn  and  reside  in  all 
parts  whatsoever  of  said  territories,  in  order  to  attend 
to  their  affairs,  and  they  shall  enjoy  to  that  effect  the 
same  security  and  protection  as  natives  of  the  country 
wherein  they  reside,  on  condition  of  their  submitting 
to  the  laws  and  ordinances  there  prevailing.”  To  this 
Count  Bismarck  replied  : Provisions  of  this  character 
by  no  means  conflict  with  the  right  of  every  independ- 
ent state  to  expel  foreigners  from  its  territory,  when 
such  course  is  considered  requisite,  upon  grounds  of  the 
welfare  of  the  state  and  of  public  order.”  Count  Bis- 
marck went  further  and  stated : Germans  naturalized 
in  America  who  have  resided  five  years  in  the  United 
States  are  to  be  regarded  as  Americans,  and  are  also 
to  be  treated  as  such  in  case  of  their  return  to  Germany, 
so  far  as  they  have  not,'  in  accordance  v/ith  article  IV 
of  the  treaty,  renounced  the  naturalization  acquired 
in  the  United  States. 

They  may,  however,  nevertheless,  when  the  accom- 
panying circumstances  require,  be  expelled  like  any 
other  foreigner.  On  principle,  this  right  will  be  con- 


242 


THE  LAW  OF  CITIZENSHIP 


sidered  only  when  maturely  considered  grounds  of  the 
public  welfare  compel.  F.  R of  U.  S.,  1886,  pp.  812-317. 

THE  RULE  OF  EXPULSION  AS  MAINTAINED  IN  THE  UNITED 

STATES. 

“ This  government  could  never  give  up  the  right  of 
excluding  foreigners  whose  presence  they  might  deem 
a source  of  danger  to  the  United  States.'’  Mr.  Everett, 
secretary  of  state,  to  Mr.  Mann,  December  13,  1852. 

‘‘Every  society  possesses  the  undoubted  right  to  de- 
termine who  shall  compose  its  members,  and  it  is  exer- 
cised by  all  nations,  both  in  peace  and  war.  A memor- 
able example  of  the  exercise  of  this  power  in  time  of 
peace  was  the  passage  of  the  alien  law  of  the  United 
States,  in  the  year  1798.”  Mr.  Marcy,  secretary  of 
state,  to  Mr.  Fay,  March  22,  1856. 

“The  control  of  people  within  its  limits,  and  the 
right  to  expel  from  its  territory  persons  who  are  dan- 
gerous to  the  peace  of  the  state,  are  too  clearly  within 
the  essential  attributes  of  sovereignty  to  be  seriously 
contested.”  Mr.  Fish,  secretary  of  state,  to  Mr.  Wash- 
burne,  September  17,  1869. 

EXPULSION  FROM  GERMANY. 

Case  of  Meyer  Gad.  Born  in  Russia.  He  settled 
in  Germany,  where  in  1878,  for  malfeasance,  he  was 
expelled  from  the  country ; he  went  to  Austria,  from 
which  country  he  went  to  the  United  States  in  1879, 
where  he  became  a citizen  by  naturalization  in  1884. 
After  naturalization  he  went  to  Germany  to  dispose  of 
some  property.  Upon  knowledge  by  the  authorities 
of  his  return  to  Germany,  he  was  ordered  to  leave  the 
country. 


IN  THE  UNITED  STATES. 


243 


The  German  government  took  the  position  that  the 
measure  of  expulsion  adopted  against  Gad  before  his 
naturalization  as  an  American  citizen  must  be  main- 
tained. 

Without  discussion  of  the  question  of  the  right  of 
the  German  government  to  punish  a breach  of  its 
municipal  law  by  expulsion  of  the  wrong-doer  from  its 
country  to  the  territory  of  other  civilized  and  friendly 
powers,  with  or  without  designation,  and  which  coun- 
try might  have  been  as  well  the  United  States  as 
any  other  country,  the  authorities  of  the  United 
States  decided  the  case  as  follows : It  does  not 
appear  that  we  can  object  to  the  German  government’s 
refusing  to  receive  back  to  the  scene  of  his  alleged 
former  depredations  Meyer  Gad,  who  appears  to  have 
been  a wandering  if  not  a predatory  Polish  Jew,  Rus- 
sian by  allegiance  of  birth,  American  by  allegiance  of 
naturalization,  Austrian  by  allegiance  of  residence, 
German  if  he  could  be  by  allegiance  of  present 
election.”  Secretary  Bayard,  F.  R.  of  U.  S.,  1885, 
p.  423. 

THE  FOURTH  ARTICLE  OF  THE  TREATY. 

This  article  has  been  the  subject  of  much  comment. 
The  position  assumed  by  the  German  government,  that 
two  years’  uninterrupted  residence  in  the  German  em- 
pire of  a former  German  subject  naturalized  in  the 
United  States  worked  a change  of  nationality,  has  not 
received  the  assent  of  the  authorities  of  the  United 
States. 

Two  reasons  have  been  advanced  against  the  German 
position. 

First,  rebuttal  testimony  should  be  allowed  to  meet 


24:4:  THE  LAW  OF  CITIZENSHIP 

the  presumption  of  an  intent  to  abandon  the  citizen- 
ship in  the  United  States. 

Second,  by  the  German  construction  of  the  treaty 
the  naturalized  American  citizen  of  German  extraction 
becomes  immediately  without  a nationality  and  is  a 
citizen  of  nowhere.  Where  a former  German  subject 
naturalized  in  the  United  States  returns  to  his  former 
country  and  by  his  mode  of  life,  his  acquisition  of 
property,  his  assimilation  with  the  people  of  the  coun- 
try, he  identifies  himself  in  their  every-day  relations 
in  business  and  otherwise  and  continues  to  do  so  for  a 
period  of  two  years’  uninterrupted  residence,  such  acts 
and  doings  are  in  themselves  constructive  of  his  intent 
and  purpose.  F.  K of  U.  S.,  1885,  p.  440. 

To  make  the  question  of  intent  to  return  depend 
upon  an  inward  mental  operation  is  not  practical. 
The  intent  should  be  deduced  from  outward  circum- 
stances by  which  the  naturalized  citizen  governs  him- 
self during  the  period  of  two  years.  This  is  the  rule 
which  has  always  governed  the  principle  formerly 
known  in  the  practice  of  animus  manendi. 

The  other  reason,  that  acting  on  the  presumption  the 
naturalized  citizen  becomes  without  a nationality,  does 
not  seem  tenable.  The  treaty  does  not  contain  totidem 
verbis  that  the  naturalized  citizen  assumes  his  former 
German  nationality.  The  intent  that  he  wishes  to  as- 
sume his  former  nationality  is  deduced  from  outward 
circumstances  by  which  he  has  governed  himself  dur- 
ing his  two  years’  uninterrupted  residence  in  the 
country.  Under  the  German  law  in  such  cases  only 
an  expression  of  a desire  to  resume  former  nationality 
is  requisite,  and  under  the  practice  this  has  been  the 


IN  THE  UNITED  STATES. 


245 


meaning,  and  the  former  nationality  resumed;  the 
acts  and  doings  of  the  naturalized  citizen  in  his  former 
country  are  held  to  work  under  the  treaty  a change  of 
citizenship  by  operation  of  law. 

The  case  of  Augustus  Eeichard  is  directly  in 
point.  Born  in  1820  in  the  then  kingdom  of  Hanover ; 
military  obligations  performed  in  1840;  emigrated  to 
the  United  States  in  1844;  became  a citizen  of  the 
United  States  in  1853 ; returned  to  Germany  in  1881 ; 
returned  subsequently  for  six  months  to  the  United 
States,  and  had  intent  to  return  to  Germany,  when  he 
was  advised  to  ascertain  his  prospective  status  upon 
return  to  Germany  under  article  4 of  the  treaty  as 
concerns  himself  and  his  children.  Eeichard  owned  a 
villa  in  Germany ; owned  real  property  in  the  United 
States  to  which  he  purposed  at  some  future  time  to 
return.  The  authorities  of  the  United  States  held  as 
follows  : The  only  effect  in  our  view  of  the  case  of 
your  overstaying  two  years  would  be  to  give  the 
German  authorities  the  right  to  say  (without  our 
interference)  that  you  or  your  children  or  both  must  be- 
come naturalized  or  leave  the  country.  As  long  as 
you  hold  to  the  bona  fide  intention  to  return  to  the 
United  States  to  reside  there  as  a citizen  we  hold  you 
and  your  minor  children  to  be  still  American  citizens.” 
F.  E.  of  U.  S.,  1884,  p.  213. 

WITH  GREAT  BRITAIN. 

The  Case  op  John  R.  McCormick. 

Born  in  Ireland  he  emigrated  to  the  United  States 
where  he  became  a naturalized  citizen  of  the  United 
States  on  the  25th  of  October,  1867.  He  subsequently 


246 


THE  LAW  OF  CITIZENSHIP 


returned  to  Ireland  where  lie  resided  uninterruptedly 
for  a period  of  over  fourteen  years.  He  was  imprisoned 
by  the  English  government  for  an  inf  raction  of  its  laws 
and  claimed  an  indemnity  for  five  months’  imprison- 
ment from  that  government  for  reason  of  his  confinement 
as  an  American  citizen. 

It  was  held  by  the  authorities  of  the  United  States: 
^‘The  case  of  British  subjects  naturalized  in  the  United 
States  who  return  to  and  voluntarily  resume  a perma- 
nent residence  within  the  territorial  jurisdiction  of  her 
Britannic  majesty  must  rest  for  settlement  and  deter- 
mination upon  the  facts  and  upon  well-understood  and 
settled  principles.  After  a careful  consideration  of 
the  facts  and  circumstances  of  the  case  it  is  not  con- 
ceived that  the  claim  is  one  which  can  with  propriety 
be  presented  by  this  government  to  the  government 
of  that  of  Great  Britain.  No  suggestion  of  this  in- 
struction, however,  is  to  be  taken  as  expressing  an 
opinion  as  to  what  Mr.  McCormick’s  political  status 
would  be  should  he  return  permanently  to  the  United 
States,  nor  as  to  the  action  of  this  government  were  he 
suffering  present  unjust  personal  treatment.”  F.  R.  of 
U.  S.,  1884,  p.  219. 

In  this  connection  two  opinions  have  reference : 
^‘When  the  individual  removes  himself,  his  family  and 
his  property  from  the  country,  and  takes  up  his  resi- 
dence in  a foreign  country,  manifesting  no  intention  to 
return  to  the  United  States,  he  is  to  be  considered  as 
having  renounced  his  allegiance  to  this  government.” 
8 Op.  Atty.-Genls.,  p.  139.  9 Op.  Atty.-Genls.,  p. 

63. 

Such  a presumed  renunciation  does  not  necessarily 


IN  THE  UNITED  STATES. 


247 


change  citizenship  so  that  it  may  not  be  regained  by 
a return  to  the  United  States. 

Cases  of  Dennis  H.  O’Connor,  Michael  Hart,  Daniel  McSweeney, 
M.  B.  Fogerty,  Michael  Baynton,  Joseph  B.  Walsh,  Joseph 
D’Alton,  John  Cormick,  James  L.  White,  James  F.  Daly,  Henry 
O’Mahoney,  William  Brophy,  John  McEnery,  Patrick  Slattery. 

In  each  of  these  cases  the  parties  were  citizens  of 
the  United  States  who  went  to  Ireland  and  were 
arrested  under  the  act  of  Parliament  known  as  An 
act  for  the  better  protection  of  property  and  persons 
in  Ireland.” 

In  most  of  the  cases  the  option  was  given  to  the 
arrested  citizens  to  return  to  the  United  States  if  they 
so  wished. 

“Any  person  who  is  declared  by  warrant  of  the 
lord-lieutenant  to  be  reasonably  suspected  of  having  at 
any  time  since  the  30th  day  of  September,  1880,  been 
guilty  as  principal  or  accessory  of  high  treason,  treason, 
felony,  or  treasonable  practices,  wherever  committed, 
or  of  any  crime  punishable  by  law  committed  at  any 
time  since  the  30th  day  of  September,  1880,  in  a pre- 
scribed district,  being  an  act  of  violence  or  intimida- 
tion, or  the  inciting  of  an  act  of  violence  or  intimida- 
tion, and  tending  to  interfere  with  or  disturb  the  main- 
tenance of  law  and  order,  may  be  arrested  in  any  part 
of  Ireland,  and  legally  detained  during  the  continuance 
of  this  act  in  such  prison  in  Ireland  as  may  from  time 
to  time  be  directed  by  the  lord-lieutenant,  without  bail 
or  main  prize ; and  shall  not  be  discharged  or  tried  by 
any  court  without  the  direction  of  the  lord-lieutenant, 
and  every  such  warrant  shall  for  the  purposes  of  this 
act  be  conclusive  evidence  of  all  matters  therein  con- 


248 


THE  LAW  OF  CITIZENSHIP 


tained,  aud  of  the  jurisdiction  to  issue  and  execute  such 
warrant,  and  of  the  legality  of  the  arrest  and  detention 
of  the  person  mentioned  in  such  warrant.” 

The  position  taken  by  the  English  government  on 
these  arrests  was,  that  it  could  make  no  distinction  as 
to  the  enforcement  of  the  terms  of  the  act  between  the 
liability  of  foreigners  and  British  subjects.  F.  B.  of 
U.  S.,  1882,  p.  212. 

In  this  the  authorities  of  the  United  States  con- 
curred. 

F.  B.  of  U.  S.,  1882,  p.  219,  quoting  the  position 
taken  by  Mr.  Buchanan  in  1848,  when  certain  citizens 
of  the  United  States  were  arrested  and  confined  in 
Newgate  prison,  Dublin,  under  the  law  suspending  the 
habeas  corj^us : If  this  law,  arbitrary  and  despotic 

as  it  is,  had  been  carried  into  execution  in  the  same 
impartial  manner  against  the  citizens  and  subjects  of 
all  foreign  nations,  this  government  might  have  sub- 
mitted in  silence.”  The  reason  for  the  position  taken 
by  the  English  government  is  assigned  by  Lord  Gran- 
ville, June  28, 1881,  despatch  to  Sir  Edward  Thornton. 
Par.  Pap.,  U.  S.,  No.  2 (1882). 

“ The  right  of  every  state  to  subject  foreigners  within 
its  limits,  no  less  than  its  own  subjects,  to  every  law 
made  for  the  maintenance  of  law  and  order,  is  an  undis- 
puted principle  of  the  law  of  nations,  and  is  a right 
necessarily  inherent  in  the  sovereignty  of  every  inde- 
pendent community.”  See  Phillimore  on  International 
Law,  vol.  1,  p.  454. 

The  principles  thus  stated  apply  alike  to  exceptional 
laws,  which  the  necessities  of  state  have  caused  to  be 
imposed,  and  to  the  action  of  the  ordinary  tribunals. 


IN  THE  UNITED  STATES. 


249 


Foreigners,  whether  native  born  or  naturalized  sub- 
jects of  their  own  state,  are  equally  amenable  to  the 
laws  for  the  time  being  in  force  in  the  country  in  which 
they  are  resident. 

In  this  view  Mr.  Blaine  concurred  as  follows  in 
O’Connor’s  case,  that  the  act  of  parliament,  under 
which  O’Connor  is  held,  is  a law  of  Great  Britain, 
and  it  is  an  elementary  principle  of  public  law 
that  in  such  case  the  government  of  that  country,  in 
the  exercise  of  its  varied  functions,  judicial  and  execu- 
tive, administers  and  interprets  the  law  in  question. 
The  right  of  every  government  in  this  respect  is  abso- 
lute and  sovereign,  and  every  person  who  voluntarily 
brings  himself  within  the  jurisdiction  of  the  country, 
whether  temporarily  or  permanently,  is  subject  to  the 
operation  of  its  laws,  whether  he  be  a citizen  or  mere 
resident.  In  stating  this  familiar  principle  no  more  is 
conceded  to  Great  Britain  than  every  country  may  of 
right  demand,  and  it  is  one  of  the  sovereign  rights 
which  the  government  of  the  United  States  has  always 
insisted  upon  and  maintained  for  itself.” 

Throughout  the  discussion  of  these  cases  the  English 
government  did  not  raise  the  question  of  abandonment 
of  citizenship. 

It  was  raised  by  Mr.  Lowell,  the  minister  of  the 
United  States,  as  follows : In  treaties  with  the  North 
German  confederation,  and  with  Wurtemberg,  the 
United  States  have  agreed  to  consider  two  years  as  the 
reasonable  limit  beyond  which  a continuous  residence 
in  his  native  country  by  the  naturalized  citizen  of 
another,  will  be  considered  as  establishing  the  animus 
manendi.  In  the  cases  of  most  if  not  all  the  so-called 
32 


250 


THE  LAW  OF  CITIZENSHIP 


suspects  in  Ireland,  continuous  residence  has  exceeded 
this  term;  in  some  it  has  greatly  exceeded  it.  I can- 
not help  thinking  that  the  British  government  would 
be  justified  in  questioning  the  final  perseverance  of 
adopted  citizenship,  under  adverse  circumstances  like 
these.”  F.  B.  of  U.  S.,  1882,  p.  240. 

Under  the  position  taken  by  the  English  government, 
that  the  principles  of  international  law  sustain  it  to 
the  point  that  both  foreigners  and  subjects  should  be 
judged  alike  for  an  infringement  of  the  law,  it  was 
wholly  unnecessary  to  call  into  question  the  natural- 
ization treaty  between  the  United  States  and  Great 
Britain,  under  which  directly  no  cases  appear  to  have 
arisen,  for  the  reason  that  it  is  quite  agreed  between 
the  two  countries  that  the  right  of  expatriation  exists, 
and  that  allegiance  may  be  thrown  off,  and  to  be  re- 
acquired it  must  be  under  the  respective  naturalization 
laws  of  the  countries. 

It  is  error  to  interpret  the  English  treaty  by  the 
German  rule,  nor  is  the  interpretation  put  upon  it,  as 
hereinbefore  stated,  the  correct  one. 

The  principle  of  intent,  and  the  right  to  express  the 
intent,  is  an  essential  requisite  under  the  international 
common-law  rule. 

The  construction,  hereinbefore  attempted  in  F.  E. 
of  U.  S.,  1882,  p.  240,  must  not  be  held  as  wise  or 
quoted. 

THE  PRACTICE  WITH  COUNTRIES  WITH  WHICH  THE  UNITED 
STATES  HAVE  NO  TREATIES  OF  NATURALIZATION 

With  the  Argentine  Republic. 

The  case  of  John  S.  Bo  we,  born  of  English  parents 
in  the  republic  of  Argentine;  in  1868  he  went  to  the 


IN  THE  UNITED  STATES. 


251 


United  States  with  tlie  object  in  view  of  obtaining  an 
education.  He  remained  there  until  1875,  during 
which  time  he  became  a naturalized  citizen  of  the 
United  States.  In  1875  he  returned  to  the  Argentine 
Eepublic  and  was  there  summoned  to  perform  military 
duty  as  a citizen  of  that  country;  he  failed  to  comply 
with  the  order  and  was  placed  under  arrest.  Upon 
demand  of  the  United  States  authorities  he  was 
released  pending  the  settlement  of  the  question, 
which  was  at  first  allowed  by  the  authorities  of  the 
United  States  to  be  submitted  to  the  local  tribunals 
of  the  Argentine  Eepublic.  This  undignified  position 
assumed  by  the  United  States  government  was  sub- 
sequently changed  by  that  government,  and  the  rule 
laid  down  by  that  government  that  even  in  the 
absence  of  a specific  treaty  on  the  subject,  this  gov- 
ernment must,  in  consonance  with  the  principle  it 
uniformly  follows,  claim  for  a duly  naturalized  citizen 
of  the  United  States  abroad  all  the  rights  which  a 
native  American  citizen  would  possess  under  like 
circumstances.”  Secretary  Frelinghuysen  to  Mr.  Os- 
born, June  19,  1882. 

This  practice  is  in  direct  conflict  with  the  rules  as 
laid  down  under  the  treaties  of  naturalization  with  the 
first  group  of  states  as  has  been  treated  hereinbefore. 

With  the  Kingdom  op  Italy. 

The  case  of  Felice  Largornorsino.  Born  in  Italy; 
he  emigrated  to  the  United  States  when  a minor,  be- 
came a naturalized  citizen  and  in  1875  returned  to 
Torrent!  in  Italy,  intending  to  spend  a year  in  his 
native  land,  and  then  return  to  the  United  States.  A 
few  days  after  his  arrival  in  Italy  he  was  notified  that 


252 


THE  LAW  OF  CITIZENSHIP 


lie  had  been  drafted  to  serve  in  the  army.  He  claimed 
to  be  an  American  citizen  and  refused  to  obey  the 
summons,  in  consequence  of  his  refusal  he  was  arrested 
on  the  charge  of  having  deserted  from  the  Italian 
army.  His  case  was  heard  and  appealed  to  the  supreme 
court  sitting  in  Home,  by  which  the  charge  of  desertion 
was  dismissed,  and  it  was  ordered  that  he  be  remanded 
to  take  his  place  in  the  army.  He  claimed  the 
protection  of  the  government  of  the  United  States. 
The  Italian  government  insisted  that  the  law  which 
governed  the  case  was  as  follows : There  are  two 

categories  of  Italian  foreign  naturalized  subjects. 
First,  the  children  of  parents  naturalized  abroad,  who 
by  the  act  of  their  parents  have  themselves  become 
aliens.  Second,  children  of  Italian  parents,  who  have 
themselves  become  naturalized  in  a foreign  country, 
whose  parents  have  not  changed  their  nationality  but 
have  remained  subjects  of  Italy.” 

Largomorsino  was  held  to  fall  within  the  second 
category,  the  parent  who  took  him  to  the  United 
States  not  having  become  a citizen  of  that  country. 
It  was  further  held  that  by  the  Italian  Code  loss  of 
citizenship  does  not  carry  with  it  exemption  from  mili- 
tary duty.”  He  was,  therefore,  held  to  a performance 
of  that  duty  to  the  Italian  government  although  recog- 
nized as  an  American  citizen.  At  the  end  of  three 
years’  service  he  was  released,  yet  throughout  that 
period  he  was  held  by  both  countries  to  be  an 
American. 

The  position  taken  by  the  authorities  of  the  United 
States  was  that  his  release  should  be  granted  on  grounds 
of  amity  and  comity  existing  between  the  two  coun- 


IN  THE  UNITED  STATES. 


253 


tries.  This  rule  was  not  recognized  by  the  Italian 
government. 

It  would  seem  that  the  United  States,  by  this  act, 
fully  agreed  with  the  prevailing  principle  in  inter- 
national common  law  that  Largomorsino,  having  failed 
to  fulfill  existing  obligations  before  his  emigration 
from  Italy,  could  be  held  to  a performance  of  such 
obligations  upon  his  return.  Both  countries,  however, 
concurred  in  his  status  as  being  that  of  an  American 
citizen. 

The  government  of  Italy  does  not  recognize 
foreign  naturalization  as  extinguishing  the  obligation 
of  its  former  subjects  to  military  service,  nor  has  that 
government  any  treaty  stipulations  with  the  United 
States,  which  in  any  way  modify  the  case  so  far  as  our 
citizens  are  concerned.  If,  therefore,  such  native  so 
naturalized  returns  to  the  jurisdiction  to  which  he  was 
once  subject  the  American  passport  which  will  be  given 
him  on  proper  application  will  insure  the  earnest  atten- 
tion of  our  diplomatic  and  consular  officers  in  case  there 
may  be  any  proper  opportunity  to  be  of  service  to  him. 
The  department  cannot,  however,  guarantee  freedom 
from  detention,  nor  protection  and  release  in  case 
charges  are  prosecuted,  based  on  conditions  preceding 
the  acknowledgment  of  obligation  to  the  United 
States.”  Mr.  Frelinghuysen,  secretary  of  state,  to  Mr. 
DePierre,  December  16,  1883. 

With  France. 

The  case  of  John  H.  Foichat.  Born  in  France  in 
1853  ; when  seventeen  years  of  age  he  emigrated  to 
the  United  States.  In  May,  1883,  he  became  a natural- 


254 


THE  LAW  OF  CITIZENSHIP 


ized  citizen  of  the  United  States,  and  in  April,  1884, 
he  returned  to  France.  He  was  arrested  for  havino^ 
failed,  when  twenty-one  years  of  age,  to  report  for 
military  duty  on  the  charge  of  insubmission,  was  de- 
tained for  some  time  and  then  released.  He  then  made 
a claim  for  pecuniary  damage. 

Mr.  Jules  Ferry  made  reply  to  this  claim  : “Upon 
principle  we  have  constantly  refused  to  admit  that  a 
Frenchman  naturalized  in  a foreign  country  can  be  ex- 
empted, if  he  returns  to  France,  from  being  answerable 
for  the  offense  of  insubmission  when  the  naturalization 
has  taken  place  subsequently  to  the  existence  of  the 
offense.  We  cannot  abandon  this  jurisprudence,  which 
is  dictated  by  a question  of  public  order  of  a most 
important  character,  and  against  which  the  government 
of  the  United  JStates  would  be  all  the  less  founded  in 
protesting,  as  it  is  in  conformity  with  one  of  the  principal 
provisions  which  appear  in  the  treaties  of  naturaliza- 
tion concluded  by  it  with  certain  powers.”  He  then 
refers  to  article  2 of  the  treaty  of  1868  between  the 
United  States  and  the  kingdom  of  Prussia. 

The  correspondence  in  relation  to  this  case  continues 
as  follows  : The  principles  w^hich  govern  are  as  fol- 
lows : First  natural  citizenship  in  France  is  not  inci- 
dental to  the  place  of  birth,  but  to  parentage  ; it  is  a 
privilege  obtained  by  inheritance.  A Frenchman  car- 
ries with  him  his  nationality  wherever  he  goes,  and 
transmits  it  to  his  children  wherever  they  are  born. 

A Frenchman  can  expatriate  himself  only  if  he 
obtains  the  consent  of  his  government.  He  may  lose 
his  national  character  by  doing  a number  of  things 
which  are  described  in  the  Code,  among  them  his 


IN  THE  UNITED  STATES. 


255 


naturalization  in  a foreign  country,  whether  with  or 
without  consent  of  his  government.  By  so  doing  he 
cannot  evade  the  duty  of  submission  to  the  military 
laws,  provided  he  is  a citizen  of  France  at  the  time 
when  such  submission  is  required  by  law.  The  good 
faith  in  his  change  of  citizenship  may  be  drawn  in 
question  and  investigated  by  the  French  authorities. 
They  are  very  jealous  of  their  military  requirements 
and  hold  tenaciously  to  their  principle  of  performance 
of  all  existing  obligations  which  accrued  before  the 
change  of  nationality.  They  maintain  further  that 
the  act  of  emigration  should  be  by  consent,  for  reason 
that  a record  is  kept  of  all  French  citizens  born  in  and 
out  of  France,  and  whenever  a change  of  nationality 
is  made,  it  becomes  a question  for  investigation.  The 
acquisition  of  citizenship  in  a foreign  country  for  the 
purpose  of  evading  an  existing  law,  will  not  avail 
under  the  French  law.  Jules  Ferry  to  L.  P.  Morton, 
October  22,  1884. 

The  case  of  Henri  Pepin.  He  was  born  in  France ; 
his  father  had  resided  in  the  United  States  and  had 
there  become  an  American  citizen  ; his  mother  was 
French,  and  after  marriage  went,  upon  one  occasion, 
temporarily,  to  the. United  States.  The  son  had  never 
been  in  the  United  States ; he  always  lived  in  France, 
and  had  expressed  no  intent  to  remove  to  the  United 
States  and  there  reside.  He  claimed  protection  as 
against  the  law  of  France,  that  every  Frenchman  must 
render  military  service  to  his  country.  It  was  held 
that  the  act  of  his  father  in  returning  to  the  country 
of  his  nativity  and  having  there  resided  for  more  than 
twenty  years,  furnished  the  presumption  of  a purpose  of 


256 


THE  LAW  OF  CITIZENSHIP 


expatriation  so  strong  that  rebuttal  testimony  must  be 
produced  in  a satisfactory  manner  to  repel  the  presump- 
tion, and  that  no  protection  could  be  afforded  against’ 
the  operation  of  the  law  of  the  country  which  had 
been  chosen  as  a domicile  until  such  rebuttal  testimony 
is  produced.  F.  E.  of  U.  S.,  1873,  p.  261. 

In  the  case  of  Eugene  Albert  Verdelet,  the  facts 
were  these  : He  was  born  in  France  in  1862,  where  he 
always  resided  with  his  family  ; his  father,  a French- 
man by  birth,  resided  in  the  United  States  for  thirty- 
five  years,  where  he  became  a citizen  in  1853.  In  1859 
he  returned  to  France,  where  he  resided  until  he  died, 
in  1874.  Upon  reaching  his  majority,  Verdelet  took 
the  oath  of  allegiance  before  the  American  consul  to 
the  United  States,  furnished  no  evidence  that  he  pur- 
posed living  in  the  United  States,  and  asked  that  he 
be  furnished  with  a certificate  of  his  nationality  from 
the  government  of  the  United  States.  It  was  held 
that  a passport  is  the  usual  form  in  which  this  govern- 
ment attests  the  nationality  of  its  citizens.  Under 
the  circumstances  of  Verdelet’s  case  it  is  considered 
that  he  is  not  entitled  to  a passport  and  consequently 
that  he  cannot  Justly  claim  a certificate  in  any  other 
form  attesting  the  fact  that  he  has  maintained  his 
American  nationality.  F.  E.,  1883,  p.  285. 

The  case  of  Victor  Labrone . Born  in  France  in  1865. 
His  father,  Ernest  Labrone,  born  in  France  in  1829, 
emigrated  to  the  United  States  in  1853.  In  1856  he 
settled  in  the  state  of  Minnesota,  where,  in  1856,  he 
was  married.  In  1863  he  was  duly  naturalized  in  the 
United  States.  In  1864  he  was  called  back  to  France 
and  took  up  his  residence  in  Bordeaux.  Victor  Labrone 


IN  THE  UNITED  STATES, 


257 


took  the  oath  of  allegiance  to  the  United  States  at  the 
American  consulate,  declaring  that  his  domicile  was 
in  Minnesota,  and  that  it  was  his  intention  to  return 
at  some  future  time  to  his  domicile.  He  was  never  in 
the  United  States.  His  application  for  protection  was 
in  1886.  It  was  held  by  the  American  authorities  that 
his  case  came  within  section  1993  of  the  Hevised 
Statutes,  by  which  all  children  heretofore  born,  or 
hereafter  born,  out  of  the  limits  of  the  United  States, 
whose  fathers  were,  or  may  be  at  the  time  of  their 
birth,  citizens  thereof,  are  declared  to  be  citizens  of  the 
United  States,  but  the  rights  of  citizenship  shall  not 
descend  to  children  whose  fathers  never  resided  in  the 
United  States.” 

The  first  question  was  whether  the  father  was  an 
American  citizen  at  the  date  of  the  birth  of  his  son 
Victor.  There  was  no  evidence  to  show  that  he  had 
abandoned  his  American  citizenship.  By  the  law  of 
nations  he  would  be  entitled  when  of  full  age  to  elect 
which  of  the  two  allegiances  he  will  accept.  It  was 
held  that  he  must  make  an  election  which  ‘‘to  be 
operative  must  not  only  be  formally  and  solemnly  de- 
clared, but  must  be  followed  by  his  coming  to,  and 
taking  up  his  abode  as  soon  as  practicable  in  the 
United  States.  Should  he  remain  voluntarily  in 
France  after  the  period  when  the  French  law  as  well 
as  the  law  of  nations  requires  him  to  make  his  election, 
this  may  properly  be  regarded  as  an  abandonment  of 
American,  and  an  acceptance  of  French,  allegiance.” 
For.  Kel.,  1886,  p.  303. 

This  rule  coincides  with  the  French  Municipal  Code, 
article  1 of  the  law  of  1851. 


33 


258 


THE  LAW  OF  CITIZENSHIP 


Any  individual  born  in  France,  of  a foreigner,  who, 
himself,  was  born  there,  is  French  unless  in  the  year 
following  the  time  of  his  majority,  as  fixed  by  French 
rule,  he  claims  his  foreign  nationality  by  a declaration 
made  either  before  the  municipal  authorities  of  the 
place  of  his  birth  or  before  the  diplomatic  or  consular 
agents  of  France  abroad,  and  establishes  that  he  has 
maintained  his  original  nationality  by  an  attestation, 
in  due  form,  of  his  government,  which  will  remain 
afiixed  to  his  declaration. 

With  Russia. 

Case  of  Isaac  Goldner.  Born  in  Odessa,  Russia,  in 
1858;  when  twelve  years  of  age,  in  1870,  he  went  to 
Germany,  from  there  in  1872  to  the  United  States, 
where  he  remained  continuously  until  1880,  having 
served  in  the  army  of  the  United  States  five  years  of 
that  time.  In  1881  he  returned  to  Odessa  on  a visit 
to  his  friends,  and  was  immediately  arrested  and  held 
for  service  in  the  Russian  army.  Pending  the  investi- 
gation of  his  case,  he  was  released  on  bail,  which  he 
forfeited  by  returning  to  the  United  States. 

Case  of  Paul  T,  Batzell.  Born  in  Riga,  Russia,  in 
1848,  he  left  for  the  United  States  in  1872,  and  be- 
came a naturalized  citizen.  Subsequent  to  his  naturali- 
zation, he  desired  to  return  to  Russia,  solely  for  a 
temporary  visit.  He  received  no  reply  to  his  request 
from  the  Russian  authorities. 

Case  of  Louis  Colsky.  Born  in  Russia,  and  in  1862, 
when  sixteen  years  of  age,  he  emigrated  to  the  United 
States  and  served  in  the  army  of  the  Union  to  the 
close  of  the  war ; was  then  naturalized ; married  in 


IN  THE  UNITED  STATES. 


259 


the  United  States;  had  four  children.  His  parents 
died  in  the  meantime,  leaving  to  him  a legacy  which 
he  desired  to  collect.  He  requested  permission  from 
the  Eussian  authorities  to  make  a personal  visit  to  his 
former  home,  but  received  no  answer. 

The  position  taken  by  the  Russian  government  is  in 
direct  antagonism  to  the  international  common-law 
practice.  The  municipal  rule  which  governs  such 
cases  is  found  in  the  Penal  Code,  article  325,  which  is 
as  follows  : “ Whoever,  leaving  his  country,  enters 

without  the  authorization  of  the  government  into  a 
foreign  service  or  becomes  a citizen  of  a foreign  power, 
incurs  on  account  of  this  violation  of  his  oath  of 
allegiance  and  of  his  duties  as  a subject,  the  privation 
of  all  his  civil  rights  and  perpetual  exile  beyond  the 
limits  of  the  empire,  or  in  case  of  voluntary  return 
to  Russia,  deportation  to  Siberia,  to  be  colonized 
there.”  F.  R.  of  U.  S.,  1881,  pp.  1028,  1029. 

The  principle  is,  that  no  individual  can  go  beyond 
the  limits  of  the  empire  without  a passport ; and  no 
passport  is  given  unless  all  claims  are  discharged. 
The  claims  are  not  by  the  government  to  perform 
military  service,  but  relate  to  taxes,  personal  indebted- 
ness, suits  at  law,  or  other  similar  obligations. 

AMERICAN  CITIZENS,  NOT  NATIVES  OF  RUSSIA,  NOT 
ALLOWED  IN  RUSSIA  BECAUSE  THEY  WERE  JEWS. 

Case  of  Marx  Wilczynski.  He  was  a citizen  of  the 
United  States  by  naturalization,  having  been  born  in 
Germany.  He  went  to  Russia  on  business  for  a mer- 
cantile firm  having  its  head-quarters  in  the  United 
States.  He  took  with  him  a passport  as  an  American 


260 


THE  LAW  OF  CITIZENSHIP 


citizen.  He  reached  St.  Petersburg,  and  was  ordered, 
very  soon  thereafter,  to  leave  Russia ; the  authorities 
indorsing  his  American  passport,  as  follows  : ‘‘The 
bearer  of  this  passport,  a North  American  citizen,  a 
merchant,  and  a Jew,  Marx  Wilczynski,  is  forbidden 
to  reside  in  St.  Petersburg.”  Upon  complaint  made 
to  the  Russian  government,  it  was  held  that  Wilczynski 
might  return  to  St.  Petersburg,  and  remain  six  months. 

Other  cases  similar  to  the  foregoing  arose  at  about 
the  same  time,  and  were  decided  in  a similar  manner 
by  the  Russian  authorities.  F.  R.  of  U.  S.,  1881,  pp. 
990,  996,  1004.  F.  R.  of  U.  S.,  1886,  p.  773. 

By  the  treaty  of  1832,  between  Russia  and  the 
United  States — a treaty  of  commerce  and  navigation — it 
w’^as  agreed,  “the  inhabitants  of  their  respective  states 
shall  be  at  liberty  to  sojourn  and  reside  in  all  parts 
whatsoever  of  their  respective  territories  in  order  to 
attend  to  their  affairs ; and  they  shall  enjoy  to  that 
effect  the  same  security  and  protection  as  natives  of 
the  country  wherein  they  reside,  on  condition  of  their 
submitting  to  the  laws  and  ordinances  there  prevail- 
ing, and  in  particular,  to  the  regulations  in  force  con- 
cerning commerce.”  F.  R.  of  U.  S.,  1881,  pp.  1030- 
1036. 

There  is  no  reference  made  to  the  religious  belief 
of  a citizen  of  either  country.  And  yet  the  Russian 
government  assumed  and  maintained  the  position  that 
an  American  citizen  of  the  Jewish  faith  was  not  en- 
titled when  in  Russia  to  any  other  or  greater  privileges 
than  Russian  Jews  enjoyed  in  Russia.  Mr.  Evarts  to 
Mr.  Foster,  September  4,  1880. 

How  this  construction  is  admissible  can  only  be  ex- 


IN  THE  UNITED  STATES. 


261 


plained  in  this  way  : That  the  laws  of  Kussia  proscribe 
Jews  to  enjoy  lesser  rights  and  privileges  in  Russia, 
than  were  enjoyed  by  other  Russian  subjects.  This 
may  be  what  was  meant  by  the  closing  clause  in  the 
article  of  the  treaty,  and  in  particular  to  the  regu- 
lations in  force  concerning  commerce.”  It  is  not  to 
be  denied  that  certain  commercial  and  trading  privi- 
leges were  denied  to  Jews  at  that  time.  It  is  diffi- 
cult, however,  to  perceive  how  this  proscription  should 
turn  against  and  include  American  citizens  of  the 
Jewish  faith.  Ap.  M.  de  Giers,  F.  R.  of  U.  S.,  1881, 
p.  1087 

When  aliens  come  to  the  United  States  and  become 
naturalized,  the  government  does  not  inquire  into  their 
religion,  and  when  once  American  citizens,  they  are 
not  protected  when  abroad  for  reason  of  the  religion 
which  they  may  profess,  but  because  they  are  American 
citizens,  and  as  such  are  entitled  to  protection.  Mr. 
Blaine  to  Mr.  Foster,  June  22,  1881,  July  29,  1881, 
Nov.  23,  1881. 

Under  the  statutes  of  the  United  States,  the  natur- 
alized citizen  is  entitled  to  the  same  protection  when 
abroad,  as  are  native  citizens. 

Wilczynski  was  not  a native  of  Russia  ; he  was  under 
no  obligations  and  bounden  by  no  ties  to  that  country 
for  reason  of  birth  or  otherwise.  He  went  there  as  a 
law-abiding  citizen  of  the  United  States.  Any  dis- 
tinction of  a local  nature  as  between  inhabitants  of 
different  religious  beliefs,  natives  of  Russia,  was  not 
applicable  to  a citizen  of  the  United  States.  He  was 
not  tried  and  found  to  be  a Jew,  which  should  have 
been  done.  The  proceeding  was  upon  the  presumption 


262 


THE  LAW  OF  CITIZENSHIP 


that  he  was  a J ew,  and  therefore  he  was  classed  with 
those  of  his  own  faith.  Nor  was  he  tried  for  the  vio.- 
iation  of  any  local  law,  which  denied  to  Jews  the  rights 
of  trade  and  privileges  of  commerce,  provided  there 
had  been  such  laws.  The  proceeding  was  arbitrary ; 
he  was  entitled  to  a hearing,  and  should  have  had  it. 

Israelites  in  general  are  subject  to  special  legislation 
in  Russia.  By  Code  of  Laws,  vol.  IX,  ed.  1876,  article 
992,  Israelites  are  forbidden  to  immigrate  to  Russia, 
and  to  receive  Russian  naturalization. 

To  this  rule  there  are  exceptions,  as  found  in  Code 
of  Laws,  ed  1857,  article  530. 

1.  Those  whom  the  imperial  government  invites 
to  come  to  Russia,  to  exercise  the  functions  of  Rab- 
bis. 

2.  Those  who  come  to  Russia  with  the  object  of 
creating  manufactories  and  workshops  (with  the  ex- 
ception of  distillers),  and  who  can  show  a capital  for 
this  purpose,  of  at  least  fifteen  thousand  roubles.  The 
individuals  at  their  entry  into  Russia  must  engage,  in 
writing,  to  create  said  establishments  within  a period 
of  three  years.  In  cases  where  they  shall  be  found  not 
to  have  complied  with  the  terms  of  their  engagements, 
they  shall  be  expelled  from  the  empire.  On  the  con- 
trary, in  case  they  shall  have  fulfilled  it,  they  shall  have 
the  right  to  become  Russian  subjects  and  shall  select  a 
legal  status.  Artisans,  called  to  Russia  by  them  to 
work  in  the  factories,  shall  be  admitted  by  certificate, 
and  after  a sojourn  of  five  years  and  evidence  from 
their  employers  and  the  local  authorities,  attesting  their 
skill  and  their  irreproachable  conduct,  they  shall  be 
permitted  to  establish  themselves  permanently  in  the 


IN  THE  UNITED  STATES. 


263 


localities  of  domicile  acquired  for  Israelites,  and  to  be- 
come Russian  subjects. 

With  Finland. 

Altbougb  Finland  is  subject  to  Russia,  yet  tbe  re- 
lation is  not  sucb  that  tbe  Penal  Code,  article  325, 
relates  to  that  territory  as  it  does  to  Russia.  The  gen- 
eral laws  of  Russia  do  not  apply  to  Finland,  and  the 
rule  which  governs  there  does  not  restrict  emigration 
nor  punish  the  return  of  its  former  subjects  natural- 
ized in  foreign  countries  as  is  done  in  Russia,  F. 
R,  of  U.  S.,  1881,  p.  1029. 

The  Practice  With  Mexico. 

There  is  a well-settled  and  fundamental  principle  as 
regards  citizenship  which  is,  that  no  municipal  law  can 
in  itself  create  or  destroy  the  status  of  a citizen  when 
established  in  the  international  common-law  practice. 

With  Mexico  there  is  a rule  which  has  not  received 
approval  in  its  application  to  foreigners  who  may 
sojourn  in  that  country. 

The  rule  is  that  established  by  the  thirteenth  article 
of  the  Mexican  constitution,  section  three,  which  pro- 
vides that  foreigners  who  acquire  real  estate  in  the 
republic,  unless  they  declare  their  intention  of  retain- 
ing their  nationality,  become  by  that  act  Mexican  citi- 
zens. 

The  declaration  of  the  intent  to  retain  nationality  is 
provided  for  by  application  to  the  foreign  office  of  the 
Mexican  government  for  a certificate  of  matriculation. 

To  illustrate  this  rule  : William  Lewis  Zuber,  as  a 
foreigner,  went  to  Mexico  and  there  became  possessed 
of  a piece  of  urban  property  in  Mazatlan.  He  made 


264 


THE  LAW  OF  CITIZENSHIP 


no  application  to  the  Mexican  government  prior  to  his 
acquisition  of  this  property  for  a certificate  of  matricu- 
lation by  which  to  obtain  recognition  as  a foreigner 
and  retain  his  nationality.  It  was  held  by  the  Mexican 
authorities  that  he  had  renounced  his  former  citizen- 
ship, and  by  the  act  of  acquisition  of  real  property  had 
become  a citizen  of  Mexico. 

Had  Zuber,  prior  to  his  acquisition  of  the  real  prop- 
erty at  Mazatlan,  applied  for  a “ carta  de  matricula  ” he 
would  have  retained  his  nationality.  Having  failed  to  do 
so  the  presumption  arises  that  he  knew  the  provision  of 
law  as  contained  in  the  Mexican  constitution  and 
thereby  intended  to  renounce  his  nationality  and  be- 
come a Mexican  citizen. 

On  the  question  of  the  standing  before  the  Mexican 
commission  of  certain  American  citizens,  owners  of 
land  which  they  cultivated  in  Mexico,  it  was  decided 
by  Dr.  Francis  Lieber  that  they  had  not  lost  their 
American  citizenship ; the  claimant  has  not  lost  his 
nationality  by  the  act  of  his  having  established  his 
domicile  temporarily  in  Mexico,  nor  by  having  acquired 
real  estate  thei*e.”  F.  R.  of  U.  S.,  1886,  p.  723. 

There  is  error  in  the  inference  that  a presumption 
can  arise  as  to  an  intent  to  acquire  or  renounce  citizen- 
ship. There  must  be  an  express  volition. 

.The  Mexican  law  provides  that  citizenship  is  ac- 
quired by  descent ; that  citizenship)  may  be  acquired 
by  naturalization.  These  rules  are  consistent  with  the 
practice  as  known  to  international  common  law,  by 
which  the  status  of  citizens  is  established.  The  further 
rule,  that  by  simple  acquisition  of  real  property  with- 
out procuration  of  certificate  of  matriculation^  is  incon- 


IN  THE  UNITED  STATES. 


265 


sis  tent  with  the  practice,  and  finds  comparison  only  with 
the  fourth  article  of  the  naturalization  treaty  between 
the  United  States  and  Prussia,  by  which  the  right  to 
declare  an  intent  is  taken  from  the  citizen  and  he  is  to 
be  adjudged  by  his  act. 

It  is  wholly  within  the  power  of  the  Mexican  govern- 
ment to  prescribe  regulations  by  which  foreigners  may 
reside  in  that  country ; these  must  be  reasonable  and 
consistent  with  public  law.  It  was  not  reasonable  to 
prescribe,  as  the  practice  did  do,  that  the  failure  of 
a foreigner  to  obtain  a certificate  of  matriculation,  pre- 
cluded his  right  to  demand  protection  from  his  govern- 
ment. Unquestionably  foreigners  are  amenable  to  the 
local  law,  but  this  rule  does  not  carry  with  it  a loss  of 
citizenship  in  case  the  foreigner  failed  to  matriculate^ 
Nor  was  this  the  purport  and  intent  of  the  rule  as  laid 
down  by  Mexico.  That  government  would  not  pro- 
tect such  an  alien  whom  it  had  declared  to  be  a 
Mexican  citizen,  should  such  an  alien  so  declared  to  be 
a citizen  of  Mexico,  return  to  his  country  of  origin  or 
to  another  foreign  country.  The  rule  was  a municipal 
regulation.  It  did  not  carry  with  it  protection  abroad, 
to  such  citizens  so  declared  to  be  citizens  without  ex- 
pression of  an  intent  to  become  Mexican  citizens  on 
their  part. 

A similar  rule  was  laid  down  by  the  government  of 
Venezuela.  In  that  country  it  was  declared  by  law, 
that  all  persons  visiting  Venezuela  became  citizens  of 
Venezuela.  To  this,  objection  was  raised  by  the 
United  States  and  the  rule  was  not  enforced  as  against 
the  citizen  of  that  country.  9 Op.  Atty.-Genls.  356. 

The  Mexican  rule  was  in  conformity  with  the  rule 
34 


266 


THE  LAW  OF  CITIZENSHIP 


of  the  Roman  civil  law  “actor  seqiiitur  forum  rei.” 
The  rule  as  to  real  property  questions  was  the  rule 
“ locus  rei  sitae.”  By  the  matriculation  requirement, 
the  authorities  confirmed  these  rules  with  the  declara- 
tion that  failure  to  take  out  a certificate  of  matricula- 
tion was  to  be  construed  that  for  the  purposes  of 
jurisdiction  these  foreigners  who  failed  to  comply  with 
the  matriculation  regulation  were  to  be  considered  as 
Mexican  citizens.  They  did  not  become  Mexican 
citizens  in  the  same  sense  as  if  acquisition  of  citizen- 
ship had  been  by  descent  or  applied  for  under  the 
laws  of  naturalization. 

There  is  no  other  construction  to  be  put  upon  the 
rule,  for  the  reason  that  it  did  not  carry  with  it  the 
protection  abroad  which  is  the  most  essential  element  in 
citizenship,  as  recognized  in  the  international  common- 
law  practice. 

In  what  respect  as  to  amenability  to  the  Municipal 
Code  of  Mexico  were  foreigners  exempt  who  did  take 
out  the  certificate  of  matriculation  ? The  common-law 
rule,  which  was  based  on  a pure  legal  fiction,  was  not 
applicable  to  Mexico,  by  which  personal  actions, 
whether  arising  ex  contractu  or  ex  delicto,  were  tran- 
sitory. In  Mexico,  taking  its  rules  from  the  Roman 
civil  law,  there  was  no  fiction  in  this  regard  by  which 
a personal  action,  arising  from  tort  or  contract,  was 
supposed  to  have  been  inflicted  or  contract  to  have 
been  made  within  the  local  jurisdiction,  and  this  per- 
mits the  action  to  be  brought  in  the  domestic  forum. 

The  Roman  rule  was  incorporated  into  the  modern 
international  law ; the  right  was  recognized  of  foreign- 
ers to  contract  with  citizens  of  other  states,  in  the  state 


IN  THE  UNITED  STATES. 


267 


of  such  citizens,  and  vice  versa,  which  right  necessarily 
draws  after  it  the  authority  of  the  local  tribunals  to 
enforce  the  contracts  thus  made,  whether  the  suit  is 
brought  by  foreigners  or  by  citizens.  Foelix,  Droit 
International  Prive,  §§  122,  123.  Wheaton  Inter- 
national Law,  § 20. 

It  would  seem  that  the  conclusion  must  be,  that  the 
rule  requiring  matriculation  in  Mexico,  in  order  to  pre- 
serve the  nationality  of  a foreigner  sojourning  in  that 
country,  was  not  in  effect  a change  of  citizenship,  for 
the  reason  that  it  could  not  obtain  recognition  in  the 
international  common-law  practice.  As  an  internal 
regulation,  it  went  too  far,  but  more  in  terms  than  in 
fact.  With  the  United  States,  it  originally  precluded 
the  right  of  intervention,  by  which  to  afford  protection 
to  its  citizens  in  some  cases ; since  then,  however,  the 
rule  has  been  modified  in  this,  that  it  is  left  optional 
with  foreigners  residing  in  Mexico,  to  request  a cer- 
tificate of  their  nationality,  which  will  be  issued  to 
them  by  the  secretary  of  foreign  relations.  There  is 
no  ground  for  a rule  by  which  to  preclude  the  right  of 
a country  to  intervene  and  protect  its  citizens.  The 
United  States  took  the  position  in  the  case  of  Zuber, 
hereinbefore  cited,  that  instructions  should  be  issued 
by  which  to  notify  citizens  of  the  United  States,  that 
they  be  made  aware  of  the  existence  of  the  Mexican 
law,  in  order  to  avoid  their  being  brought  into  trouble  ; 
although  it  did  not  recognize  the  right  of  the  Mexican 
government,  by  its  laws,  to  thus  force  a change  of 
citizenship  on  its  citizens,  who  might  sojourn  in  Mexico, 
and  there  acquire  real  estate. 

In  another  case,  however,  the  force  of  a law  by 


268 


THE  LAW  OF  CITIZENSHIP 


which  citizenship  was  held  to  have  been  changed  by  a 
former  citizen  of  the  United  States  was  recognized. 
It  was  the  case  of  James  W.  Smith,  a former  citizen  of 
the  United  States,  who  entered  the  military  service  of 
the  republic  of  Mexico.  By  the  laws  of  that  country, 
this  act  worked  a change  of  citizenship,  and  Smith  be- 
came a citizen  of  the  republic;  after  his  death,  the 
question  arose  as  to  the  nationality  of  his  minor  chil- 
dren who  had  been  born  in  the  United  States. 

It  was  held:  ‘Uf  within  the  jurisdiction  of  the 
United  States,  their  right  to  American  citizenship 
would  be  unimpaired,  and  even  if  within  Mexican 
jurisdiction  during  minority,  they  would,  in  the  ab- 
sence of  any  Mexican  law  specifically  attaching  the 
altered  status  of  the  father  to  his  minor  children 
within  Mexican  jurisdiction,  be  still  properly  regarded 
as  American  citizens.  But  if  there  be  such  a law,  or 
if,  on  attaining  majority,  they  remain  in  Mexico,  and 
come  within  any  provision  of  Mexican  law,  making 
them  citizens  of  that  republic,  they  could  not  be 
i*egarded  as  citizens  of  the  United  States.”  Mr.  Seward, 
secretary  of  state,  to  Mr.  Foster,  August  13,  1879. 

The  case  of  Emilio  Boig.  Born  in  Bussia,  he  emi- 
grated to  the  United  States  in  1871,  and  five  years 
later  became  a naturalized  citizen.  Subsequently  he 
went  to  Mexico  where  he  was  arrested,  and  forced  into 
the  army.  He  applied  for  protection.  It  was  held  by 
the  Mexican  government,  that  because  he  had  not  ap- 
plied for  a certificate  of  matriculation  as  an  American 
citizen,  that  he  could  not  be  recognized  as  an  American 
citizen  in  Mexico. 

These  vexed  questions,  which  have  caused  so  much 


IN  THE  UNITED  STATES. 


269 


feeling  between  tbe  United  States  and  Mexico,  bave 
been  solved  by  laws  defining  the  status  of  citizens  and 
foreigners  in  the  Mexican  republic,  passed  in  1886. 

MEXICO  — LAW  CONCERNING  FOREIGNERS  AND  NATURAL- 
IZATION-PROMULGATED IN  1886. 

CHAPTER  I. — • Op  Mexicans  and  Foreigners. 

Article  1.  Mexicans  are  : 

(1)  Those  born  on  national  territory,  of  a father 
Mexican  by  birth  or  by  naturalization. 

(2)  Those  born  on  national  territory,  of  a Mexican 
mother  and  a father  not  recognized  as  such  by  the  laws 
of  the  republic.  Those  born  of  unknown  parents  or 
of  unknown  nationality  shall  be  likewise  [so]  consid- 
ered. 

(3)  Those  born  outside  the  republic,  of  a Mexican 
father  who  has  not  lost  his  nationality.  If  this  should 
have  occurred,  those  children  shall  be  reported  as  for- 
eigners ; having  the  option,  though,  of  becoming  Mex- 
icans within  one  year  from  the  day  they  attain  twenty- 
one  years,  provided,  if  they  live  abroad,  they  make  the 
due  declaration  before  diplomatic  or  consular  agents  of 
the  republic;  or,  if  they  reside  in  national  territory, 
before  the  department  of  foreign  affairs. 

Should  the  children  referred  to  in  the  preceding 
paragraph  reside  in  national  territory,  and  should  they, 
on  arriving  at  maturity,  accept  any  public  position,  or 
serve  in  the  army,  navy  or  the  national  guard,  they 
shall  be  considered  Mexicans  in  virtue  thereof,  without 
the  need  of  further  formalities. 

(4)  Those  born  outside  the  republic,  of  a Mexican 
mother  and  unknown  father,  provided  the  former  has 


270 


THE  LAW  OF  CITIZENSHIP 


not  lost  her  nationality,  according  to  the  provisions  of 
this  law.  If  the  mother  should  become  naturalized  in 
a foreign  country  her  children  shall  be  foreigners  ; but 
they  shall  have  the  option  of  becoming  Mexicans 
under  the  terms  and  conditions  of  the  preceding  para- 
graph. 

(5)  Those  Mexicans  who  having  under  the  provis- 
ions of  this  law  lost  their  national  character,  and  who 
may  have  recovered  it  by  complying  with  the  due 
requisites,  according  to  the  different  cases  treated  of. 

(6)  The  foreign  woman  who  marries  a Mexican,  and 
who,  even  during  her  widowhood,  retains  her  Mexican 
nationality. 

(7)  Those  born  outside  the  republic,  but  who,  being 
here  in  the  year  1821,  and  having  taken  the  oath  of 
independence,  have  continued  to  reside  in  national 
territory  and  have  not  changed  their  nationality. 

(8)  Those  Mexicans  who,  established  in  the  territory 
ceded  to  the  United  States  by  the  treaties  of  February 
2,  1848,  and  of  November  30,  1853,  complied  with  the 
requirements  of  said  treaties  to  preserve  their  Mexican 
nationality.  Mexicans  who  continue  to  reside  in  ter- 
ritory belonging  to  Guatemala  are  in  the  same  cate- 
gory, also  citizens  of  that  republic  remaining  in  ter- 
ritory belonging  to  Mexico,  as  specified  by  the  treaty 
of  September  27,  1882,  provided  said  citizens  comply 
vrith  the  stipulations  of  the  fifth  article  of  that  treaty. 

(9)  Foreigners  who  may  become  naturalized  under 
the  present  law. 

(10)  Foreigners  who  acquire  real  estate  in  the  re- 
public, provided  they  do  not  specify  their  intention  of 
preserving  their  nationality  — as  soon  as  the  property 


IN  THE  UNITED  STATES. 


271 


is  acquired  the  foreigner  shall  state  to  the  notary,  or 
the  respective  receiver,  whether  or  not  he  desires  to 
obtain  Mexican  nationality,  as  granted  under  paragraph 
3 of  the  thirtieth  article  of  the  constitution,  and  the 
decision  of  the  foreigner  shall  appear  in  the  body  of 
the  document. 

If  he  select  Mexican  nationality,  or  fail  at  the  time 
to  designate  any  preference,  he  may  still  within  a year 
resort  to  the  department  of  foreign  affairs  to  comply 
with  the  requirements  of  article  19,  and  be  considered 
a Mexican. 

(11)  Foreigners  with  children,  born  in  Mexico,  who 
do  not  prefer  to  retain  their  character  as  foreigners. 
On  registering  the  birth  of  the  child,  the  father  shall 
indicate  his  intention  in  this  particular  to  tbe  judge 
of  the  civil  register,  and  the  same  shall  be  recorded  in 
the  body  of  the  document.  If  he  should  select  Mexi- 
can nationality,  or  fail  to  state  his  intention  in  that 
particular,  he  will  still  be  able  to  resort  to  the  depart- 
ment of  foreign  affairs  within  a year  to  comply  with 
requirements  of  the  nineteenth  article  and  be  consid- 
ered a Mexican. 

(12)  Those  foreigners  who  officially  serve  the  gov- 
ernment or  accept  therefrom  titles  or  public  offices, 
provided  that  within  one  year  from  the  date  of  accept- 
ance of  those  titles  or  public  offices  which  should  be 
conferred  upon  them,  or  from  the  commencement  of 
their  official  service  to  the  Mexican  government,  they 
resort  to  the  department  of  foreign  affairs  to  comply 
with  the  requirements  of  the  nineteenth  article,  and  be 
considered  as  Mexicans. 

Art.  2.  Foreigners  are: 


272 


THE  LAW  OF  CITIZENSHIP 


(1)  Those  born  outside  of  national  territory,  sub- 
jects of  foreign  governments,  and  who  have  not  be- 
come naturalized  in  Mexico. 

(2)  The  children  of  a foreign  father,  or  foreign 
mother  and  unknown  mother,  born  on  national  terri- 
tory, until  they  reach  the  age  when,  according  to  the 
law  on  nationality  of  the  father  or  mother  respectively, 
they  cease  to  be  minors.  If  for  one  year  after  they 
arrive  at  maturity  they  do  not  file  with  the  local  au- 
thorities of  the  place  of  their  residence  their  intention 
of  retaining  the  nationality  of  their  parents,  they  shall 
be  considered  Mexicans. 

(3)  Those  absent  from  the  republic  without  leave 
or  license  from  the  government,  unless  on  aqpount  of 
studies,  or  for  public  interests,  or  commercial  or  indus- 
trial pursuits,  or  in  the  exercise  of  a profession,  who 
allow  ten  years  to  elapse  without  asking  for  a proroga- 
tion of  their  term  of  absence.  This  prorogation  shall 
not  exceed  five  years  on  each  application,  and  after  the 
first  prorogation  is  granted,  good  and  sufficient  reasons 
must  be  given  before  another  can  be  obtained. 

(4)  Mexican  women  who  marry  foreigners,  and  who 
preserve  the  character  of  foreigners  even  during  their 
widowhood,  the  marriage  being  dissolved,  the  native 
woman  can  recover  her  nationality,  provided  that,  in 
addition  to  residing  in  this  republic,  she  make  due 
declaration  before  the  civil  Judge  nearest  her  residence 
of  her  intention  to  recover  that  nationality. 

The  Mexican  woman  who,  under  the  laws  of  her 
husband’s  country,  does  not  assume  his  nationality  by 
her  marriage  shall  retain  her  own. 

The  change  of  the  husband’s  nationality  after  mar- 


IN  THE  UNITED  STATES. 


273 


riage  implies  a similar  change  in  that  of  the  wife  and 
the  minor  children  subject  to  the  father’s  authority,  pro- 
vided they  live  in  the  country  of  naturalization  of  the 
husband  or  father,  respectively,  with  the  sole  exception 
stated  in  the  preceding  clause  of  this  paragraph. 

(5)  Mexicans  naturalized  in  other  countries. 

(6)  Those  who,  without  leave  of  congress,  officially 
serve  foreign  governments  in  any  political,  administra- 
tive, judicial,  military  or  diplomatic  capacity. 

(7)  Those  who,  without  previous  leave  of  the  fed- 
eral congress,  accept  foreign  decorations,  titles  or  offices, 
save  in  the  case  of  literary,  scientific  or  humanitarian 
titles,  all  of  which  they  are  free  to  accept. 

Art.  3.  In  order  to  determine  the  place  of  birth  in 
the  above  cases,  it  is  hereby  declared  that  national  ves- 
sels, without  any  distinction,  are  part  of  the  national 
territory,  and  that  those  born  on  board  of  them  are 
considered  as  being  born  within  the  republic. 

Art.  4.  In  virtue  of  the  right  of  extra-territoriality 
enjoyed  by  diplomatic  agents  the  children  of  miinsters 
and  employees  of  the  legations  of  the  republic  will 
never  be  regarded  as  being  born  outside  the  republic. 

Art.  5.  The  nationality  of  legally  responsible  per- 
sons or  beings  is  regulated  by  the  law  which  authorizes 
the  same.  In  consequence,  all  those  so  constituted, 
according  to  the  laws  of  the  republic,  shall  be  Mexi- 
cans, if,  in  addition,  they  make  it  their  legal  resi- 
dence. 

Legally  responsible  foreigners  enjoy  in  Mexico  the 
rights  guaranteed  by  the  laws  of  their  country  in  so 
far  as  these  do  not  conflict  with  the  laws  of  the  nation. 

35 


274 


THE  LAW  OF  CITIZENSHIP 


CHAPTER  II. — Of  Expatriation. 

Art.  6.  Tlie  Mexican  republic  recognizes  the  right 
of  expatriation  as  being  natural  and  inherent  in  every 
man,  and  necessary  to  the  enjoyment  of  individual 
liberty.  In  consequence,  while  it  allows  its  inhabitants 
to  exercise  this  right,  so  they  can  leave  its  territory 
and  settle  in  a foreign  land,  it  also  protects  the  right 
of  foreigners  of  all  nationalities  who  seek  to  settle 
within  its  jurisdiction.  The  republic,  therefore,  re- 
ceives subjects  or  citizens  of  other  states,  and  natural- 
izes them  under  the  provisions  of  this  law. 

Art.  7.  Expatriation  and  consequent  naturalization 
obtained  in  a foreign  land  do  not  exempt  the  criminal 
from  extradition,  trial  or  punishment  to  which  he  may 
be  subject  under  the  provisions  of  treaties,  interna- 
tional law,  and  the  law  of  the  land. 

Art.  8.  Citizens  naturalized  in  Mexico,  even  if 
abroad,  have  a right  to  equal  protection  on  the  part  of 
the  government  of  the  republic  with  native-born 
Mexicans  in  their  persons  or  their  property.  This  does 
not,  in  case  they  return  to  their  native  land,  exempt 
them  from  responsibilities  incurred  before  the  natural- 
ization, under  the  laws  of  that  land. 

Art.  9.  The  Mexican  government  shall,  through  the 
channel  of  international  law,  protect  Mexican  citizens 
when  abroad.  The  president,  as  he  may  deem  neces- 
sary, shall  make  use  of  these  means,  provided  they  do 
not  constitute  acts  of  hostility.  But  if  diplomatic  in- 
tervention be  not  sufficient,  and  such  measures  prove 
futile,  or  if  the  offenses  against  the  Mexican  nation  be 
serious  enough  to  demand  severer  measures,  the  presi- 


IN  THE  UNITED  STATES. 


275 


dent  shall  notify  congress  thereof,  and  furnish  the  re- 
spective documents  for  constitutional  effect. 

Art.  10.  The  naturalization  of  a foreigner  becomes 
nullified  by  his  residence  in  his  own  country  for  two 
years,  unless  he  be  absent  on  an  ofificial  commission 
for  the  Mexican  government,  or  with  the  permission 
of  the  same. 

CHAPTER  III.  — Op  Naturalization. 

Art.  11.  Foreigners  who  comply  with  the  requisites 
of  this  law  may  be  naturalized  in  the  republic. 

Art.  12.  At  least  six  months  before  applying  for 
naturalization  papers  the  applicant  should  state  in 
writing  before  the  municipal  council  of  his  place  of 
residence,  his  intention  of  becoming  a Mexican  citizen 
and  of  resigning  his  foreign  nationality.  The  munic- 
ipal authorities  shall  give  him  a certified  copy  of  his 
application  and  preserve  the  original  in  their  archives. 

Art.  13.  When  the  said  six  months  shall  have 
passed,  and  the  foreigner  has  resided  two  years  in  the 
republic,  he  may  apply  to  the  federal  government  for 
his  certificate  of  naturalization.  To  obtain  it  he  should 
first  present  himself  to  the  district  judge  in  whose 
jurisdiction  he  resides,  and  furnish  proof  of  the  fol- 
lowing : 

(1)  That  according  to  the  law  of  his  land,  he  en- 
joys all  civil  rights,  being  of  age. 

(2)  That  he  has  resided  in  the  republic  at  least 
two  years,  and  has  observed  good  conduct. 

(3)  That,  for  his  living,  he  has  some  business,  in- 
dustry, profession  or  revenue. 

Art.  14.  The  applicant  shall  add  to  the  petition 
presented  to  the  district  judge  a copy  of  the  certificate 


276 


THE  LAW  OF  CITIZENSHIP 


issued  by  the  municipal  authorities,  as  specified  in  ar- 
ticle 12.  He  shall  also  make  an  express  renouncement 
of  all  submission,  obedience  or  fidelity  to  foreign  gov- 
ernments, and  especially  to  that  of  which  he  had  been 
a subject,  disclaiming  also  all  protection  outside  of  the 
laws  and  authority  of  Mexico,  and  all  rights  which,  by 
treaties  or  international  law,  are  guaranteed  to  for- 
eigners. 

Art.  15.  The  district  judge,  prior  to  the  ratification 
made  by  the  applicant,  in  the  presence  of  the  district 
attorney,  shall  take  the  deposition  of  witnesses  on  the 
points  referred  to  by  article  1 3,  and,  if  he  deem  it 
necessary,  shall  obtain  the  report  which  the  municipal 
council  should  furnish,  as  promised  in  article  12. 

The  judge  shall  also  admit  any  other  proofs  pre- 
sented by  the  interested  party  touching  the  points  in- 
dicated in  article  13,  and  shall  consult  the  judgment 
of  the  district  attorney. 

Art.  16.  In  case  the  decision  of  the  judge  be  favor- 
able to  the  applicant,  he  shall  transmit  the  legal 
documents,  in  original,  to  the  department  of  foreign 
affairs,  applying  for  the  certificate  of  naturalization, 
provided  there  be  no  legal  motive  to  impede  the  same. 
Through  the  said  judge  the  interested  party  shall 
transmit  a petition  to  that  department  asking  for  the 
certificate  of  naturalization,  ratify  his  renouncement  of 
the  rights  of  a foreigner,  and  protest  adherence,  obe- 
dience and  submission  to  the  laws  and  authorities  of 
the  republic. 

Art.  17.  Foreigners  serving  in  the  national  merchant 
marine  may  become  naturalized,  one  year  of  service  on 
board  sufficing  instead  of  two  years,  as  otherwise 


IN  THE  UNITED  STATES. 


277 


required  under  article  13.  Tlie  district  judge  of  any 
of  the  ports  touched  by  the  ship  is  amply  authorized 
to  negotiate  this  matter,  and,  likewise,  any  of  the 
municipal  authorities  of  those  Dorts  may  receive  the 
petitions  treated  in  article  12. 

Art.  18.  Foreigners  naturalized  under  this  law  are 
not  included  in  the  provisions  of  articles  12,  13,  14, 15 
and  16,  neither  are  they  who  have  the  option  of  Mex- 
ican nationality.  In  consequence,  children  of  a Mexi- 
can father  or  mother,  who  has  lost  his  or  her  citizenship, 
and  to  whom  the  third  and  fourth  paragraphs  of 
article  1 refer;  the  foreigner  who  marries  a Mexican, 
referred  to  in  paragraph  6 of  the  same  article ; the 
children  of  a foreign  mother  and  unknown  father,  born 
on  national  territory,  as  specified  in  paragraph  2 of 
article  2 ; and  a Mexican  widow  of  a foreigner,  as 
treated  in  paragraph  4 of  the  same  article,  shall  be 
considered  as  legally  naturalized  by  solely  complying 
^vith  the  requisites  in  such  cases  and  without  the  neces- 
sity of  other  formalities. 

Art.  19.  Foreigners  who  find  themselves  within  the 
scope  of  paragraphs  10,  11  and  12  of  article  1 may 
apply  to  the  department  of  foreign  affairs  for  their 
certificate  of  naturalization  within  the  terms  specified 
therein.  Their  petition  should  be  accompanied  by  a 
document  accrediting  them,  as  the  case  may  be,  with 
the  acquisition  of  real  estate,  or  that  they  had  children 
born  in  Mexico,  or  had  accepted  some  public  position. 
They  will  also  present  the  renouncement  and  protest 
required  under  articles  14  and  16  for  ordinary  natu- 
ralization. 

Art.  20.  Absence  in  a foreign  land  by  permission 


278 


THE  LAW  OF  CITIZENSHIP 


of  the  government  does  not  conflict  with  the  residence 
clause  in  article  13,  provided  it  does  not  exceed  six 
months  during  any  period  of  two  years. 

Art.  21.  Certificates  of  naturalization  shall  not  be 
extended  to  subjects  or  citizens  of  any  nation  with 
which  the  republic  may  be  engaged  in  war. 

Art.  22.  Neither  shall  certificates  be  given  to  those 
who  are  judicially  repudiated,  and  in  other  countries 
declared  to  be  pirates,  slave  dealers,  incendiaries,  coun- 
terfeiters of  coin,  or  forgers  of  bank  bills  or  other 
paper  passing  current  as  money,  nor  assassins,  kidnap- 
pers or  thieves.  By  common  right,  naturalization 
papers  fraudulently  obtained  by  a foreigner  in  viola- 
tion of  the  law  are  null  and  void. 

Art.  23.  The  certificates  of  naturalization  shall  be 
issued  gratuitously,  nor  may  any  fee  for  costs,  registry, 
seal  or  other  expense  be  collected  thereon. 

Art.  24.  The  act  of  naturalization  being  a very 
personal  matter,  the  petitioner  may  only  be  repre- 
sented by  a proxy  who  has  special  and  sufficient 
powers  for  the  act,  and  who  holds  the  renouncement 
and  protest  made  in  person  by  the  interested  party 
himself,  according  to  articles  14  and  16.  But  in  no 
case  may  the  powers  of  the  proxy  substitute  the  actual 
residence  of  the  foreigner  in  the  republic. 

Art.  25.  The  character  of  citizen  or  of  foreigner  is 
not  transferable  to  a third  party.  Therefore,  for  ob- 
vious reasons,  neither  can  the  citizen  enjoy  the  rights 
of  a foreigner,  nor  the  latter  the  prerogatives  of  the 
former. 

Art.  26.  The  change  of  nationality  does  not  produce 
retroactive  effects.  The  acquisition  and  rehabilitation 


IN  THE  UNITED  STATES. 


279 


of  the  rights  of  a Mexican  only  take  effect  on  the  day 
following  that  on  which  all  the  conditions  and  settled 
formalities  of  this  law  have  been  complied  with  to 
obtain  naturalization. 

Art.  27.  Colonists  who  come  to  this  country  under 
contract  with  the  government,  and  whose  expenses  for 
traveling  and  installation  are  paid  by  the  same,  shall 
be  considered  Mexicans.  In  their  enrollment  contract 
shall  be  specified  their  intention  to  renounce  their 
former  nationality  and  adopt  the  Mexican,  and  on  set- 
tling in  the  colony  they  shall  file  with  the  competent 
authorities  the  renouncement  and  protest,  as  required 
under  articles  1 3 and  16.  The  authorities  shall  send 
the  same  to  the  department  of  foreign  affairs,  which 
in  turn  shall  issue  the  certificate  of  naturalization  in 
favor  of  the  interested  party. 

Art.  28.  Colonists  who  come  here  on  their  own  ac- 
count, or  for  private  companies  and  organizations  not 
subventioned  by  the  government,  and  also  immigrants 
of  all  classes,  may  become  naturalized  in  each  case 
under  this  law.  Colonists  established  up  to  the  pres- 
ent are  subject  also  to  the  law  in  this  ]iarticular  in 
every  respect  that  does  not  conflict  with  the  rights  ac- 
quired through  their  contracts. 

Art.  29.  The  naturalized  foreigner  shall  become  a 
citizen  of  the  republic  as  soon  as  he  complies  with  the 
conditions  required  by  article  34  of  the  constitution, 
being  clothed  with  all  the  rights  and  obligations  as  a 
Mexican  citizen  ; but  he  shall  not  be  qualified  to  dis- 
charge those  trusts  or  employments  which,  in  conform- 
ity with  the  laws,  require  the  nationality  by  birth, 
unless  he  had  been  born  in  national  territory,  and  that 


280 


THE  LAW  OF  CITIZENSHIP 


§aid  nationality  had  been  effected  by  paragraph  II  of 
article  2. 

CHAPTER  IV. — Of  the  Rights  and  Obligations  op  Foreigners. 

Art.  30.  Foreigners  in  the  republic  share  the  civil 
rights  pertaining  to  Mexicans,  and  the  guarantees  of- 
fered in  section  1,  title  1,  of  the  constitution,  with  the 
sole  exception  of  the  faculty  held  by  the  government 
for  the  expulsion  of  pernicious  foreigners. 

Art.  31.  In  the  accpiirement  of  waste  and  govern- 
ment lands,  of  real  estate  and  of  ships,  foreigners  are 
not  obliged  to  reside  in  the  republic,  but  are  subject 
to  the  restrictions  imposed  by  the  laws  now  in  force, 
with  the  understanding  that  all  leases  of  real  estate 
made  to  a foreigner  shall  be  considered  as  sales  if  the 
term  of  the  contract  exceed  ten  years. 

Art.  32.  The  federal  law  alone  can  modify  the  civil 
rights  of  foreigners  by  the  principle  of  international 
reciprocity,  so  that,  therefore,  foreigners  may  be  sub- 
ject in  this  republic  to  the  same  legal  disqualificatious 
which  the  laws  of  their  country  impose  on  Mexicans 
there  resident.  Consequently  the  provisions  of  the 
Civil  Code  and  of  district  procedure  possess,  in  this  re- 
spect, a federal  character  and  are  obligatory  through- 
out the  union. 

Art.  33.  Foreigners,  without  forfeiting  their  own 
nationality,  may  make  their  homes  in  the  republic  for 
all  legal  effects.  The  acquirement,  change  or  relin- 
quishment of  their  residences  are  subject  to  the  laws 
of  Mexico. 

Art.  34.  In  case  of  the  suspension  of  individual 
guarantees,  in  the  terms  prescribed  by  the  twenty- 


IN  THE  UNITED  STATES. 


281 


ninth  article  of  the  constitution,  foreigners  and  Mexi- 
cans are  alike  subject  to  the  law  decreasing  the  sus- 
pension, save  in  the  case  of  treaty  stipulations. 

Art.  35.  Foreigners  are  obliged  to  contribute 
toward  public  expenses  in  the  manner  prescribed  by 
the  laws,  and  are  also  required  to  respect  and  obey  the 
institutions,  laws  and  authorities  of  the  country,  sub- 
jecting themselves  to  the  decisions  and  sentences  of 
the  courts,  and  without  appeal  to  other  resources  than 
are  granted  to  Mexicans  by  the  laws.  They  can  ap- 
peal to  the  via  diplomatica  only  in  case  of  the  denial 
of  justice  or  of  voluntary  delay  in  its  administration, 
after  having  exhausted,  without  effect,  the  common 
legal  resources,  and  that  as  determined  by  interna- 
tional law. 

Art.  36.  Foreigners  do  not  enjoy  the  political  rights 
of  Mexican  citizens.  They,  therefore,  cannot  vote  nor 
be  voted  for  in  any  popular  election,  nor  be  named  for 
any  position  or  commission  in  a state  career.  Nor  can 
they  join  the  army,  navy  or  national  guards,  nor  be- 
come associated  with,  or  engaged  in,  the  political  ques- 
tions of  the  country,  nor  exercise  the  right  of  petition 
in  these  matters.  This  is  understood  not  to  conflict 
with  the  provisions  of  article  1,  paragraph  XII,  and  of 
article  19  of  this  law. 

Art.  37.  Foreigners  are  exempt  from  military  ser- 
vice. Foreign  residents,  though,  are  obliged  to  serve 
as  police  in  the  event  of  preserving  property  and  of 
maintaining  order  in  the  place  in  which  they  live. 

Art.  38.  Foreigners  participating  in  the  civil  dis- 
sensions of  the  country  may  b(^  expelled  from  its  ter- 
ritory as  pernicious  foreigners,  being  subject  to  the 
36 


282 


THE  LAW  OF  CITIZENSHIP 


laws  of  the  republic  for  any  crimes  they  may  commit 
against  it,  and  without  the  privilege  of  having  their 
rights  and  obligations  regulated  by  international  law 
or  by  treaties  in  case  of  a state  of  war. 

Art.  39.  The  laws  establishing  the  matriculation  of 
foreigners  are  repealed.  The  department  of  foreign 
affairs  alone  can  issue  certificates  of  determined  na- 
tionality to  foreigners  soliciting  the  same.  These  cer- 
tificates constitute  a legal  presumption  of  foreign  citi- 
zenship, but  proofs  to  the  contrary  are  not  barred. 
The  definite  proof  of  determined  nationality  is  pre- 
sented before  the  competent  courts  and  by  the  means 
established  by  laws  or  treaties. 

Art.  40.  This  law  does  not  concede  to  foreigners 
any  rights  denied  them  by  international  law,  by  treaties 
or  by  the  laws  in  force  in  the  republic. 

CHAPTER  V. — Transitory  Measures. 

Article  1.  Foreigners  who  have  acquired  real  es- 
tate, or  have  had  children  in  Mexico,  or  have  held  some 
public  position,  and  who  are  embraced  in  the  provis- 
ions of  paragraphs  X,  XI  and  XII  of  article  1 of  this 
law,  are  obliged  to  manifest  within  six  months  after 
its  publication,  provided  they  have  not  previously  done 
so,  to  the  political  authorities  of  their  place  of  resi- 
dence, whether  they  desire  to  obtain  Mexican  national- 
ity or  to  retain  that  of  foreigners.  In  the  first  event, 
they  should  immediately  apply  for  the  certificate  of 
naturalization,  according  to  the  form  prescribed  in  ar- 
ticle 19  of  this  law.  If  they  fail  to  manifest,  as  indi- 
cated, they  shall  be  considered  Mexicans,  save  in  cases 
where  official  declaration  has  been  made  on  that  point. 


IN  THE  UNITED  STATES. 


283 


Aet.  2.  Colonists  resident  in  the  country,  to  whom 
the  last  part  of  article  28  of  this  law  refers,  shall  man- 
ifest, in  the  manner  specified  in  the  preceding  article, 
the  nationality  they  wish  to  retain,  and  also  apply  for 
their  certificate  of  naturalization  under  the  provisions 
of  that  article,  if  the  nationality  they  desire  be  Mexi- 
can. 

Art.  3.  The  executive,  in  issuing  the  necessary  reg- 
ulations for  the  execution  of  this  law,  shall  see  that 
requisite  measures  are  taken,  so  that  the  local  authori- 
ties may,  as  far  as  they  are  concerned,  give  it  due  ful- 
fillment. 

With  Turkey. 

In  Turkey  there  governs  a rule  similar  to  the  rule  of 
matriculation  as  promulgated  in  Mexico. 

The  bureau  of  nationality  certifies  to  the  nationality 
of  foreigners,  which  is  held  to  be  a prerequisite  to  main- 
tenance of  citizenship. 

In  the  year  1869,  the  Turkish  government  issued  an 
order  forbidding  Turkish  subjects  to  leave  the  country 
without  permission  to  become  naturalized  in  another 
country. 

The  law  as  laid  down  by  article  V,  of  the  legislation 
Ottomanes,  is  as  follows  : The  Ottoman  subject,  who 
has  acquired  a foreign  nationality  with  the  author- 
ization of  the  imperial  government,  is  considered  and 
treated  as  a foreign  subject.  If,  on  the  contrary,  he 
has  naturalized  himself  as  a foreigner  without  the 
preliminary  authorization  of  the  imperial  government, 
his  naturalization  will  be  considered  as  null  and  void, 
and  he  will  continue  to  be  considered  and  treated  in 
all  respects  as  an  Ottoman  subject.  No  Ottoman  sub- 


284: 


THE  LAW  OF  CITIZENSHIP 


ject  can  in  any  case  acquire  foreign  naturalization  until 
after  obtaining  an  act  of  autliorization  delivered'  by 
virtue  of  an  imperial  irade. 

The  condition  precedent  to  naturalization  in  a for- 
eign country,  tbat  tlie  authorization  of  the  imperial 
government,  should  be  had  for  Turkish  subjects  before 
their  naturalization  abroad  would  obtain  recognition 
upon  return  to  their  country  of  origin.  This  regulation 
does  not  prohibit  emigration.  It  requires  that  the 
departure  should  be  lawfully  authorized.  It  affords 
an  opportunity  to  protect  the  government,  to  protect 
creditors  and  investigate  the  condition  of  the  would-be 
emigrant  as  appertains  to  pauperism  and  crime.  By 
it,  the  government  is  made  aware  of  its  subject’s  rela- 
tions at  the  time  of  application  for  a certificate,  and 
the  intended  future  relations  which  the  emigrant 
desires  to  assume.  The  government  is  enabled  to 
inquire  into  unfulfilled  and  existing  obligations  which 
must  be  performed  before  departure. 

By  article  IX  of  the  legislation  Ottomane,  the  fol- 
lowing rule  is  laid  down  : Every  individual  inhabit- 
ing Ottoman  territory  is  reputed  an  Ottoman  subject, 
and  will  be  treated  as  such  until  his  character  as  a 
foreimer  is  verified  in  a resrular  manner.” 

The  bureau  of  nationality  is  open  for  this  investiga- 
tion, where,  by  application,  the  foreigner  may  establish 
his  citizenship,  pursuant  to  prescribed  rules.  As  to 
these  rules  there  has  been  much  discussion.  The  Turk- 
ish government  contravenes  the  principle  of  interna- 
tional common  law,  that  a passport  issued  by  a govern- 
ment to  one  of  its  citizens,  was  prima  facie  evidence  of 
the  citizenship  of  the  person  to  whom  the  passport  was 


IN  THE  UNITED  STATES. 


285 


issued.  This  rule  was  not  satisfactory  to  the  Turkish 
government,  which  went  still  further  and  demanded 
the  full  and  complete  evidence,  showing  the  manner  in 
which  the  application  for  citizenship  was  made,  and  the 
form  of  the  certificate  granted  as  the  judgment  of  the 
court  in  the  application.  Other  impediments  were 
placed  in  the  way  of  former  Turkish  subjects,  and  in 
this  regard  a distinction  was  made  between  citizens  of 
the  United  States,  by  descent  or  by  naturalization, 
who  were  former  subjects  of  other  countries,  and  those 
who  were  formerly  subjects  of  the  Ottoman  empire. 
In  this  demand  the  Turkish  government  cannot  pre- 
vail in  the  international  practice,  in  cases  where  the 
subject  departed  with  authority,  in  this,  that  a distinc- 
tion be  drawn  between  citizens  of  a foreign  country, 
for  reason  that  some  of  such  citizens  were  former  Turk- 
ish subjects.  The  rule  is,  that  the  applicant  who  de- 
sires to  establish  his  citizenship,  whenever  there  is  any 
question,  must  himself  furnish  the  evidence  of  what  he 
claims,  which  evidence  must  be  satisfactory  to  the 
authorities  in  charge  of  the  bureau  of  nationality.  This 
bureau  is  a special  commission,  appointed  at  the  minis- 
try of  foreign  affairs,  with  the  charge  to  ascertain 
through  an  investigation,  based  on  the  treaties,  conven- 
tions and  existing  laws  and  regulations,  the  real  nation- 
ality of  individuals,  who,  as  presumed  Ottoman  sub- 
jects, claim  to  be  of  foreign  nationality  or  under  foreign 
protection.  F.  R,  1886,  p.  864. 

The  practice  differs  from  the  Turkish  rule. 

If  the  departure  was  legal  this  ends  the  question, 
and  it  cannot  be  raised  upon  return  to  the  country  of 
origin.  It  is  open  upon  return,  for  the  government  to 


286 


THE  LAW  OF  CITIZENSHIP 


inquire  into  the  naturalization,  in  order  to  ascertain  if 
the  same  was  legal  in  all  respects,  and  to  call  the  atten- 
tion of  the  government,  under  which  the  naturalization 
was  made,  to  any  errors  which  the  government  will  aid 
in  the  investigation  of  such  questions,  in  the  interests 
of  conformity  to  its  own  laws,  and  to  prevent  fraud. 
This  was  the  practice  with  Germany  and  other  states. 

With  Colombia. 

The  laws  which  govern  citizenship  are  as  follows : 
Political  constitution  of  Colombia,  of  date  December, 
1885. 

Article  8.  The  following  persons  are  declared  to  be 
Colombians : 

(1)  By  birth.  Those  who  are  natives  of  Colombia, 
under  either  of  the  following  conditions : That  the 
father  or  the  mother  was  a native  of  Colombia,  or  that, 
being  the  children  of  foreigners,  they  are  domiciled  in 
the  republic.  The  legitimate  children  of  a Colombian 
father  or  mother,  who  were  born  in  a foreign  country, 
and  shall  have  afterward  fixed  their  domicile  in  the 
republic,  are  considered  Colombian  by  birth,  for  the 
purposes  indicated  in  the  laws  that  determine  this  con- 
dition. 

(2)  By  origin  or  vicinity.  Those  who  are  born  in 
foreign  countries,  of  a Colombian  father  or  mother,  and 
are  domiciled  in  the  republic,  and  all  Spanish- Ameri- 
cans who  may  have  appeared  before  the  municipal 
authorities  of  the  place  in  which  they  reside,  and  regis- 
ter themselves  as  Colombians. 

(3)  By  adoption.  Those  foreigners  who  apply  for, 
and  obtain  letters  of  naturalization. 


IN  THE  UNITED  STATES. 


287 


Article  9.  Tlie  status  of  the  Colombian  citizen  is 
forfeited  by  obtaining  letters  of  administration  in  a 
foreign  country,  fixing  therein  his  domicile,  and  he  may 
recover  it  under  laws  enacted  for  that  purpose. 

Article  16.  Citizenship  is  lost  when  nationality  is 
lost.  The  quality  of  citizens  shall  also  be  forfeited  in 
either  of  the  following  cases  when  judicially  declared: 

(1)  When  he  enters  the  service  of  a nation  at  war 
with  Colombia. 

(2)  When  he  shall  have  belonged  to  a rebellious 
faction  against  the  government  of  a friendly  nation. 

(3)  When  he  shall  be  condemned  to  suffer  corporeal 
punishment. 

(4)  When  he  shall  have  been  removed  from  public 
office  by  means  of  a criminal  procedure  or  of  an  act 
affecting  his  civil  responsibility. 

(5)  W^hen  he  shall  have  committed  acts  of  violence, 
falsehood  or  corruption  in  elections. 

All  persons  who  may  have  lost  their  citizenship  may 
petition  the  senate  for  restoration. 


With  the  Hawaiian  Islands. 

The  case  of  Peter  Cushman  Jones.  Born  in  the 
United  States,  of  parents  who  were  citizens  of  the 
United  States,  in  1837.  When  twenty  years  of  age  he 
went  to  the  Hawaiian  Islands.  In  the  year  1864  he 
took  an  oath  to  the  government  that  he  would  sup- 
port the  constitution  and  laws  of  the  Hawaiian  Islands 
and  bear  true  allegiance  to  his  majesty  the  king.”  Sub- 
sequent to  this,  by  which  he  became  a citizen,  he  voted 
and  used  his  influence  for  good  government.  He  did 
this  in  order  to  protect  his  business  interests.  He  desired 


288 


THE  LAW  OF  CITIZENSHIP 


to  re-acquire  his  citizenship  as  a citizen  of  the  United 
States,  and  asked  for  instructions. 

It  was  held  “ to  constitute  expatriation  there  must 
be  an  actual  removal  followed  by  foreign  residence, 
accompanied  by  authentic  renunciation  of  pre-existing 
citizenship.”  8 Op.  Atty.-Genls.  139. 

Further  than  this,  no  information  was  imparted  by 
opinion,  only  the  suggestion  that  the  question  might  at 
some  future  time  become  a matter  for  judicial  investi- 
gation. F.  K.  of  U.  S.,  1882,  p.  346. 

It  would  seem  that  Mr.  Jones  having  complied  with 
the  laws  of  the  Hawaiian  Islands,  by  which  he  became 
a citizen,  and  as  such  exercised  his  rights  and  enjoyed 
his  privileges,  that  he  thereby  renounced  his  American 
citizenship,  and  could  only  renew  it  by  compliance  with 
the  laws  of  naturalization  precisely  the  same  as  would 
any  other  alien.  To  deceive  the  citizens  of  the  Hawaiian 
Islands  in  his  contract  Avith  them,  that  he  did  not  in- 
tend what  he  did  do  in  good  faith,  and  only  did  AA^hat  he 
did  do  to  accomplish  a certain  purpose,  namely,  pro- 
tect his  business  interests  and  nothing  more,  certainly 
could  not  be  countenanced  by  his  former  fellow-citi- 
zens in  the  United  States.  Then  again  he  had  his 
business  interests  there ; he  had  his  domicile  there  ; 
nothing  appears  to  show  that  he  intended  to  return  to 
the  United  States  ; evidently  he  was  there  for  a per- 
manent purpose  which,  coupled  Avith  bis  act  by  which 
he  took  the  oath  to  the  king,  should  be  construed  as  a 
renunciation  of  his  rights  and  claims  as  an  American 
citizen.  He  could  not  be  under  oath  to  the  United 
States  and  to  the  IlaAvaiian  Islands  and  do  his  duty  by 
and  to  both.  Such  a dual  relation  would  be  both  im- 


IN  THE  UNITED  STATES. 


289 


practicable  and  illegal.  There  was  but  one  instruction 
to  give  him  and  that  was,  that  he  had  lost  his  American 
citizenship  in  the  exercise  of  his  rights  as  an  American 
citizen,  and  must  re-acquire  it  as  any  alien  would  do. 
He  had  the  right  of  expatriation  as  an  American  citi- 
zen. 

ALIENS. 

Aliens  are  citizens  or  subjects  of  a foreign  state  resid- 
ing in  another  state.  The  residence  may  be  temporary 
or  permanent. 

An  alien  enjoys  rights  and  privileges  in  the  country 
in  which  he  is  resident ; he  is  subject  to  the  laws  the 
same  as  are  citizens ; he  may  seek  redress  in  the  courts 
for  wrongs  done,  and  is  within  the  jurisdiction  of  the 
courts  for  his  own  wrong-doings.  He  is  entitled  to 
full  protection,  and  owes  local  allegiance  to  the  laws 
of  the  land. 

It  is  the  duty  of  the  president,  to  whom  the  care 
of  our  foreign  relations  is  committed,  to  take  all  law- 
ful measures  for  the  protection  of  alien  subjects  of  a 
state  with  which  the  United  States  are  at  peace,  who 
shall  come  within  our  territory  and  place  themselves 
under  the  safeguard  of  our  laws  with  the  consent  of 
the  general  and  state  governments.  3 Op.  Atty.-Genls. 
253.  Taylor  vs.  Carpenter,  3 Story,  458.  7 Op.  Atty.- 

Genls.  229,  351. 

For  better  care  and  protection,  it  is  the  custom  to 
send  ambassadors,  envoys,  ministers  and  consuls  to  a 
country  in  which  foreigners  have  taken  residence. 
This  is  done  by  all  civilized  countries.  In  time  of  war 
between  countries,  these  representatives  withdraw  and 
for  the  protection  of  their  fellow-citizens,  the  represent- 
37 


290 


THE  LAW  OF  CITIZENSHIP 


atives  of  other  countries  which  are  at  peace  with  the 
countries  at  war,  are  placed  in  charge  of  the  citizens 
of  the  countries  at  war.  Notably  was  this  the  case 
during  the  late  war  between  Germany  and  France, 
during  which  the  minister  of  the  United  States  to 
France  was  requested  to  take  charge  of  German  sub- 
jects in  France,  and  the  English  ambassador  to  Ger- 
many was  requested  to  take  charge  of  French  subjects 
in  Germany,  after  the  withdrawal  of  the  respective 
representatives  from  either  country. 

Aliens  in  a country  owe  a temporary  and  local 
allegiance  to  the  country  in  which  they  reside.  That 
is,  they  become  subject  to  the  laws  of  the  country  and 
impliedly  agree  to  obey  the  law  of  the  land. 

Aliens  domiciled  in  the  United  States  owe  a local 
and  temporary  allegiance  to  the  government  of  the 
United  States.  They  are  bound  to  obey  all  the  laws 
not  immediately  relating  to  citizenship  during  their 
residence  and  are  equally  amenable  with  citizens  for 
any  infraction  of  those  laws.”  Carlisle  vs.  United 
States,  16  Wallace,  148.  Mr.  Jefferson,  secretary  of 
state,  to  Mr.  Genet,  June  5,  1793. 

Every  foreigner  residing  in  a country  owes  to  that 
country  allegiance,  and  obedience  to  the  laws  as  long 
as  he  remains  in  it  as  a duty  imposed  on  him  by  the 
mere  fact  of  his  residence  and  the  temporary  protec- 
tion which  he  enjoys,  and  is  as  much  bound  to  obey 
its  laws  as  native  subjects  or  citizens.  This  is  the  uni- 
versal understanding  in  all  civilized  states  and  no- 
where a more  established  doctrine  than  in  this  country. 
6 Webster’s  Works,  524.  Mr.  Buchanan  to  Mr.  Orma, 
February  1,  1848,  MSS. 


IN  THE  UNITED  STATES. 


291 


The  use  of  the  term  allegiance/’  must  not  be  con- 
founded with  the  import  of  that  term  as  connected 
with  citizenship.  The  construction  should  be,  as  is 
the  practice,  with  the  interpretation  of  obedience  to  the 
laws.  A dual  allegiance  is  as  much  a fiction  as  is  a 
dual  citizenship.  In  the  English  practice  it  was  held 
that  a child  born  of  foreign  parents  by  virtue  of  birth 
owed  allegiance  to  England ; when,  however,  the  child 
returned  with  its  parents  to  the  country  of  their  origin 
he  owed  another  allegiance  to  that  country.  In  other 
words,  by  the  birth  in  England  the  child  of  foreign 
parents  became  a subject  of  England  so  far  as  English 
soil  was  concerned ; when  not  in  England  he  was  not 
protected  more  than  was  a naturalized  citizen  of 
England  as  against  any  claims  of  the  parent  country. 
This  is  the  English  rule  under  the  naturalization  act 
of  1870.  In  re  Bourgoise,  41  Eng.  Law  Repts.,  Chan. 
Div.,  p.  310.  In  re  Willoughby,  30  Chan.  Div.,  324. 

Heffter  lays  down  the  rule  to  be,  as  a general 
proposition  a man  can  have  only  one  allegiance.” 

Bluntschli  is  of  opinion,  “that  aliens  owe  obedience 
to  the  laws  of  the  land  in  which  they  reside.” 

Sir  B.  Phillimore  agrees  in  this  as  follows,  “ all 
strangers  commorant  in  a land,  owe  obedience  as  sub- 
jects for  the  time  being,  to  the  laws  of  it.” 

In  case  of  rebellion  in  a country,  aliens  should  re- 
frain from  participation  in  the  same,  for  by  so  doing 
they  become  equally  liable  for  any  treasonable  acts 
with  those  citizens  who  participate  in  the  rebellion. 

“ Aliens  domiciled  in  the  United  States,  prior  to  the 
rebellion,  and  who  gave  aid  and  comfort  to  the  rebel- 
lion, were  subject  to  be  prosecuted  for  violation  of  the 


292 


THE  LAW  OF  CITIZENSHIP 


laws  of  the  United  States  against  treason.”  Carlisle  vs. 
United  States,  16  Wallace,  148. 

IN  MATTERS  OF  PROPERTY. 

An  alien  can  inherit,  carry  away  and  alienate  per- 
sonal property  without  being  liable  to  any  jus  detrac- 
tus.  1 Op.  Atty.-Genls.  275. 

The  question  of  the  right  to  hold  real  property  is  a 
question  of  municipal  law  which  each  society  governs 
by  its  own  regulations.  It  is  not  a right  which  can  be 
demanded  on  the  principles  of  international  common 
law.  At  the  present  time  it  is  well  established  in 
Europe  and  America,  that  aliens  may  hold  real  estate. 
This  rule  was  accepted  in  Turkey,  by  the  law  of 
June  15,  1867,  and  finally  in  England  by  the  alien  act 
of  1870. 

Aliens  cannot  demand  reparation  for  loss  of  prop- 
erty caused  by  internal  dissension  or  rebellion  in  the 
country  in  which  they  reside,  where  they  suffer  in 
common  with  the  citizens  of  that  country. 

The  governments  of  Russia  and  Austria  refused  to 
admit  that  reparation  should  be  made  to  English- 
men who  suffered  losses  in  their  property  during  the 
revolutions  in  Naples  and  Florence  in  Italy. 

One  cannot  admit  that  a sovereign  forced  to  re- 
gain a city  temporarily  lost  to  him  by  rebellion  of  his 
subjects,  should  compensate  strangers  who  in  the  midst 
of  similar  circumstances  to  his  own  subjects,  become 
the  victims  of  loss  of  property.”  Prince  Nesselrode, 
May  2,  1850. 

The  United  States  refused  damages  to  Spanish  sub- 
jects which  they  suffered  at  New  Orleans  in  1851. 


IN  THE  UNITED  STATES. 


293 


The  same  rule  governed  in  the  civil  v^ar  of  1861- 
1865. 

The  conference  of  the  great  powers  of  Europe  at 
Paris,  in  1869,  laid  down  the  same  rule  as  to  the 
struggles  between  Turkey  and  Greece. 

Germany  demanded  of  Spain  reparation  to  her  subjects 
for  losses  sustained  by  the  bombardments  of  Don  Carlos 
in  1872, 1873, 1874  and  1875,  but  failed  in  her  demand. 

Aliens  are  not  duly  bound  to  serve  in  the  army 
other  than  for  local  defense  in  common  with  other 
inhabitants.  There  is  no  rule  of  international  law 
prohibiting  the  government  of  any  country  from 
requiring  aliens  to  serve  in  the  militia  or  police.” 
2 Halleck  Int.  Law,  p.  6. 

As  aliens  do  not  enjoy  political  rights,  so  the  politi- 
cal burdens  should  not  be  imposed  on  them.  Blunt- 
schli  Int.  Law,  p.  227. 

The  rule  was  carried  further  in  the  United  States  in 
1863  than  it  had  been  previous  in  the  practice.  By  act 
of  congress  March  3,  1863,  it  was  expressly  declared 
that  the  levy  should  include  all  persons  of  foreign 
birth  who  shall  have  declared  on  oath  their  intention 
to  become  citizens.” 

The  English  government  excepted  to  this  rule  in 
this,  that  such  aliens  not  having  exercised  political 
rights,  should  be  allowed  a reasonable  period  within 
which  to  optate  to  remain  or  leave  the  country.  This 
was  granted  by  the  government  of  the  United  States. 

In  another  instance,  the  rule  was  extended  to  aliens 
who  had  exercised  the  right  of  suffrage.  Certain 
English  subjects  residing  in  Wisconsin  complained  of 
this  action  of  the  American  authorities,  on  the  ground 


294 


THE  LAW  OF  CITIZENSHIP 


that  they  had  not  surrendered  their  English  nationality 
by  exercising  the  right  of  suffrage.  Lord  Lyons  was 
instructed  by  the  home  government  to  abide  the  de- 
cision of  the  American  law  courts. 

M.  Mercier,  the  French  minister,  wrote  in  a circular 
to  the  French  consuls,  that  Frenchmen,  who  had  voted 
illegally  in  the  United  States,  had  no  doubt  laid 
themselves  liable  to  penalties  in  that  country,  but  that 
they  had  not  forfeited  their  French  nationality  or 
their  rights  as  aliens  to  be  exempt  from  compulsory 
military  service.  1 Ilalleck  Int.  Law,  p.  365. 

In  some  of  the  states  of  the  union  the  right  of  suf- 
frage is  extended  to  aliens  who  have  expressed  their 
intent  to  become  citizens.  Under  the  constitution  of 
the  United  States,  article  1,  section  2,  clause  1,  they 
may  vote  for  representatives  to  congress.  This  right  so 
conferred  by  the  laws  of  one  state  does  not  carry  the  priv- 
ilege to  vote  in  the  several  states  nor  the  enjoyment  of 
immunities  which  the  federal  constitution  secures  and 
guarantees  under  article  IV,  section  1,  clause  1.  The 
question  has  not  been  raised  as  to  the  right  of  a state  to 
confer  extra  privileges  on  an  alien  which  other  states  do 
not  confer.  The  distinction  between  a citizen  and  an 
alien  with  the  right  of  suffrage  is  confusing.  The  alien 
with  the  rio-ht  of  suffrasre  under  a state  law  cannot  make 

O O 

demands  for  protection  on  the  federal  government  ex- 
cept so  far  as  he  is  entitled  under  a declaration  of  in- 
tent, filed  in  any  of  the  federal  or  state  courts,  which  he 
may  or  may  not  perfect  by  the  act  of  naturalization. 

The  theory  has  been  expressed  that  the  test  of  citi- 
zenship is  the  right  of  voting  in  the  government  of  the 
local,  j)rovincial  or  national  community  of  which  one 


IN  THE  UNITED  STATES. 


295 


is  a member.  Lawrence’s  Wheaton  on  International 
Law,  p.  393.  It  would  seem  that  without  membership 
in  a community  one  should  not  enjoy  the  right  of  suf- 
frage, and  certainly  it  seems  absurd  that  an  alien  under 
a state  law  should  have  the  privilege  of  voting  for  a 
representative  to  congress,  when  no  national  law  exists 
under  which  the  alien  can  claim  membership  in  the 
national  community. 

ADOPTION  OF  CHILDREN  OF  FOREIGN  BIRTH. 

The  act  of  adoption  by  a citizen  of  the  United  States, 
of  a child  born,  in  a foreign  country,  does  not  transfer 
the  citizenship  of  the  father  to  the  child.  It  does  not 
work  a change  of  citizenship  in  the  child.  It  is  not 
within  the  rule  of  partus  sequuntus  patrem.  The  child 
will  still  maintain  the  citizenship  of  its  natural  father, 
if  known  ; if  not,  then  that  of  the  mother,  mater  semper 
certa  est. 

“A  citizen  of  the  United  States  cannot, by  adopting 
a child  of  foreign  nationality,  confer  on  such  child  the 
privileges  of  citizenship  in  the  United  States.”  Mr. 
Fish,  secretary  of  state,  MSS.  Dom.  Letters,  January 
6,  1872. 

The  effect  is  only  to  place  the  foreign-born  child  in 
a position  when  reaching  majority  to  elect  either  to  re- 
tain the  citizenship  of  his  natural  father,  or  father 
being  unknown,  that  of  the  mother  as  to  assume  the 
citizenship  of  the  father  by  adoption. 

ADOPTION  OF  WOMEN  BY  MARRIAGE. 

A citizen  of  the  United  States  can  confer  on  a foreign 
born  woman  the  rights  and  privileges  of  an  American  - 


296 


THE  LAW  OF  CITIZENSHIP 


citizen  by  marriage.  This  rule  is  modified  by  10  U. 
S.  Statutes  at  Large,  604,  in  this,  “ any  woman  who  is 
now  or  may  hereafter  be  married  to  a citizen  of  the 
United  States,  and  who  might  herself  be  lawfully 
naturalized,  shall  be  deemed  a citizen.”  The  require- 
ment, ^^who  might  herself  be  lawfully  naturalized,”/ 
carries  wihtin  it  two  elements,  the  first  being  the/ 
possibility  under  the  laws  of  the  United  States  of| 
naturalization  of  women  born  in  foreign  countries  } 
and  second,  the  question  of  civil  rights  in  her  relations 
to  the  laws  of  the  country  of  her  origin.  This  latter 
element  is  of  importance  in  this,  that  citizenship  does 
not  in  itself  involve  rights  and  privileges  in  the  coun- 
try of  which  one  is  a citizen,  but  also  protection  abroad 
and  recognition  of  her  citizenship  when  abroad,  and  in 
particular  in  the  country  of  her  origin.  While  this 
latter  element  cannot  strictly  be  inquired  into  as  a con- 
dition precedent  and  finally  determined  by  the  tri- 
bunals of  the  United  States,  yet  its  importance  is 
beyond  doubt,  and  should  she,  by  the  laws  of  her  coun- 
try of  origin,  not  be  competent  to  become  naturalized 
in  a foreign  country,  her  citizenship,  as  conferred  by 
the  United  States  Statutes,  would  not  avail  her  upon 
return  to  the  country  of  her  origin. 

A Russian  woman,  by  name  of  Topaz,  married  an 
American.  The  question  was  whether  by  such  mar- 
riage she  became  exempt  from  the  municipal  laws  of 
Russia  respecting  women.  It  was  held,  “ there  can  be 
no  doubt  that  such  a person  would  upon  her  marriage 
to  an  American  citizen  acquire  the  right  to  be  regarded 
by  the  authorities  of  the  United  States  as  an  American 
citizen  in  every  country  except  that  to  which  she  owed 


IN  THE  UNITED  STATES. 


297 


allegiance  at  the  time  of  her  marriage.”  Secretary  Fish, 
June  9,  1874,  MSS.  Kussia. 

It  was  a maxim  of  the  Roman  law,  which  has  been 
incorporated  into  modern  jurisprudence,  that  as  the 
wife  takes  the  rank,  so  does  she  also  take  the  domicile 
of  her  husband,  and  by  the  same  analogy  the  widow 
retains  it  after  her  husband’s  death.  But  if  she  marry 
again,  her  domicile  becomes  that  of  her  second  husband. 
Woolsey  Int.  Law,  p.  311.  Calvo,  International  La  w^ 
Vol.  1,  p.  230.  Foelix,  Droit  International  Prive, 
pp.  82,  83. 

A woman  partakes  of  her  husband’s  nationality. 
Secretary  Fish,  March  18,  1872. 

A wife’s  political  status  follows  that  of  her  hus- 
band. Secretary  Frelinghiiysen,  March  31, 1883. 

The  only  mode  of  adoption  by  which  a private  citi- 
zen can  confer  citizenship  on  an  alien  is,  that  of  marry- 
ing a female  of  a foreign  state.  Secretary  Fish,  March 
26,  1870. 

In  Field’s  Outlines  of  an  International  Code,  p.  135, 
it  is  laid  down  marriage  gives  to  the  wife  the  privi- 
leges of  the  national  character  of  her  husband,  but 
does  not  deprive  her  of  the  privileges  of  that  which 
she  had  before  marriage.” 

This  rule  must  conflict  with  itself  in  the  practice. 
It  does  not  appear  to  effect  any  thing  other  than  attri- 
bute to  her  a dual  nationality  which  is  a mere  Action 
of  law  and  impracticable. 

The  woman  changes  her  nationality,  absolutely,  by 
marriage  to  a citizen  of  the  United  States.  She  does 
not  enjoy  in  coverture,  any  other  or  different  rights  and 
privileges  from  those  enjoyed  by  her  husband. 


298 


THE  LAW  OF  CITIZENSHIP 


The  rule  does  not  require  residence  in  the  United 
States ; a woman  who  is  married  to  a citizen  of  the 
United  States  partakes  of  his  citizenship,  though  re- 
siding abroad.  Kelly  vs.  Owen,  7 Wallace,  496.  14 

Op.  Atty.-Genls.  402. 

IHARRIAGE  OF  WOMEN,  CITIZENS  OP  THE  UNITED  STATES, 
TO  FOREIGNERS. 

The  same  rule  which  applies  to  foreign  women  who 
marry  citizens  of  the  United  States  governs  women 
citizens  of  the  United  States  who  marry  foreigners. 

A woman,  a citizen  of  the  United  States,  marries 
an  alien  who  resides  out  of  the  jurisdiction.  She  abso- 
lutely ceases  to  be  an  American  citizen,  and  becomes 
subject  to  all  the  disabilities  of  alienage.”  F..K.  of 
U.  S.,  1874,  p.  413. 

A woman  was  born,  married  a French  citizen,  and 
always  resided,  before  and  after  the  death  of  her  hus- 
band, in  France.  It  was  held  that  she  was  a French 
subject,  though  her  father  at  the  time  of  her  birth  was 
a citizen  of  the  United  States.  12  Op.  Atty.-Genls.  7. 

The  rule  has  been  modified  in  some  respects,  as  re- 
gards rights  of  inheritance  and  ability  to  transfer 
property.  “ A woman,  who  is  a citizen  of  the  United 
States,  merges  her  nationality  in  that  of  a foreign  hus- 
band on  her  marriage ; but  it  does  not  necessarily  fol- 
low that  she  thus  becomes  subject  to  all  the  disabilities 
of  alienage,  such  as  inability  to  inherit  or  transfer  real 
property.”  Mr.  Fish,  secretary  of  state,  September  22, 
1875,  MSS.  Mr.  Frelinghuysen  to  Mr.  Lawrence, 
March  31,  1883,  MSS  , Dom.  Let.  Mr.  Frelinghuysen 
to  Mr.  Foster,  April  2,  1883,  MSS.,  Dom.  Let. 


IN  THE  UNITED  STATES. 


299 


IN  CASE  OF  DIVORCE. 

The  woman  merges  her  nationality  in  that  of  her 
husband  upon  marriage  to  a foreigner.  In  case  of 
legal  separation,  the  practice  places  her  iu  a position 
similar  to  that  of  a minor  child,  born  of  foreign  par- 
ents, who  has  been  adopted  by  a citizen  of  the  United 
States  upon  reaching  majority.  The  wife  may  elect 
whether  to  preserve  the  foreign  nationality  acquired 
by  her  marriage,  or  re-acquire  her  former  American 
citizenship. 

This  rule  was  laid  down  in  the  French  practice,  ^^upon 
legal  separation  from  her  husband,  she  may  chose  her 
domicile.”  Phillimore,  vol.  IV,  pp.  63,  64,  maintains 
the  same  to  be  the  English  rule.  I am  not  aware  of 
any  decided  case  in  England  upon  the  question  of  the 
domicile  of  the  wife  divorced,  a mensa  et  thoro,  but  in 
principle  it  seems  to  me  there  can  be  but  little  doubt, 
that  in  England  as  in  France  it  would  not  be  that  of 
the  husband,  but  the  one  chosen  for  herself  after  di- 
vorce. In  case  of  divorce  a mensa  et  thoro,  her  domi- 
cile is  not  affected  by  the  removal  of  her  husband  to 
another  country.  Pennsylvania  vs.  Ravenel,  21  How. 
103. 

WIDOWHOOD. 

Upon  death  of  the  husband,  the  former  citizenship 
of  the  wife  does  not  revert ; she  must  do  some  act  by 
which  to  work  a change  in  her  nationality,  if  she  should  i 
desire  to  do  so. 

But  on  widowhood,  a woman  should  be  entitled  to 
resume  her  original  nationality,  on  returning  and  set. 
tling  in  her  former  country.”  Chief  Justice  Cockburn 
on  Nationality,  p.  216. 


300 


THE  LAW  OF  CITIZENSHIP 


This  would  be  expressive  of  an  intent.  She  should 
do  more.  Her  nationality  having  absolutely  merged 
in  that  of  her  husband,  she  has  become  an  alien,  and 
should  be  treated  as  such.  The  statutes  of  the  United 
States  and  codes  of  European  countries  prescribe,  how 
aliens  may  acquire  citizenship.  The  widow  abandoned 
her  former  citizenship  by  marriage  to  her  husband. 
This  is  equivalent  to  naturalization  abroad.  To  re-ac- 
quire  the  citizenship  lost  by  her  by  her  marriage,  she 
should  comply  with  the  naturalization  laws.  Mr. 
Fish  to  Mr.  Washburn e,  Feb.  24,  1871,  MSS.,  in- 
structed that  passports  should  be  withheld  from 
wddows  of  French  citizens,  former  Americans,  unless 
the  widows  produced  evidence  of  their  intent  to  re- 
sume residence  in  the  United  States. 

The  citizenship  acquired  by  an  alien  woman 
through  marriage  to  a citizen  of  the  United  States  is 
not  lost  by  the  death  of  the  husband.”  15  Op.  Atty.- 
Genls.  599. 

The  English  rule  was  laid  down  in  Pari.  Pap.  189, 
as  follows : The  British-born  widows  of  American  or 
foreign  husbands,  if,  after  the  dissolution  of  their 
coverture,  they  should  elect  to  claim  the  benefit  of 
their  British  character,  they  would  be  at  liberty  to  do 
so,  and  must  be  treated  and  protected  as  British  sub- 
jects. 1 Halleck  Int.  Law,  369. 

CITIZENSHIP  BY  SERVICE  IN  THE  ARMIES. 

By  section  2066  of  the  Revised  Statutes  of  the  United 
States,  citizenship  is  conferred  as  follows : Any  alien 
of  the  age  of  twenty-one  years  and  upwards,  who  has 
enlisted  or  may  enlist  in  the  armies  of  the  United 


IN  THE  UNITED  STATES. 


301 


States,  either  in  the  regular  or  volunteer  forces,  and 
has  been  or  may  be  hereafter  honorably  discharged, 
shall  be  admitted  to  become  a citizen  of  the  United 
States  upon  his  petition,  without  any  previous  declara- 
tion of  his  intention  to  become  such,  and  shall  not  be 
required  to  prove  more  than  one  year’s  residence  within 
the  United  States  previous  to  his  application  to  be- 
come such  citizen ; and  the  court  admitting  such  alien 
shall,  in  addition  to  such  proof  of  residence  and  good 
moral  character  as  now  provided  by  law,  be  satisfied 
by  competent  proof  of  such  persons  having  been 
honorably  discharged  from  the  service  of  the  United 
States. 

It  has  been  held  in  Bailey’s  case,  2 Sawyer,  200,  that 
this  law  applies  only  to  the  armies  of  the  United 
States.  The  term  “ armies  ” does  not  even  include 
marines. 

It  remains,  however,  under  this  act,  that  the  appli- 
cant should  make  a formal  application  to  the  court, 
and  prove  one  year’s  residence  in  the  United  States, 
good  moral  character,  and  that  he  has  been  honorably 
discharged  from  service  in  the  army. 

In  this  connection,  however,  it  should  not  be  for- 
gotten that  citizenship  conferred  in  the  foregoing 
manner  is  so  done  in  accordance  with  a domestic  rule 
which  holds  equally  good,  and  has  the  same  effect  as 
any  rules  of  naturalization,  which  may  be  prescribed 
in  any  country  for  its  own  guidance  in  its  domestic 
affairs. 

PASSPORTS  AND  CLAIMS  FOR  DAMAGES. 

The  value  of  a passport  lies  in  the  declaration  made 
under  the  authorization  of  the  government  that  the 


302 


THE  LAW  OF  CITIZENSHIP 


person  or  persons  named  therein  are  citizens  of  the 
country  and  are  entitled  to  recognition  as  such  by  the 
authorities  of  foreign  governments.  Mr.  Everett  to 
Mr.  Ingersoll,  Dec.  7,  1852,  MSS.  Woolsey  Int.  Law, 
p]3.  264,  265.  Every  citizen  of  a country  can  demand 
of  his  government  a passport  as  evidence  of  his  right 
to  claim  protection  when  abroad.  Mr.  Fish  to  Mr. 
Davis,  Jan.  14, 1875,  MSS.  The  simple  declaration  of 
an  intent  to  become  a citizen  does  not  entitle  the  ap- 
plicant to  such  a certificate  of  his  national  character. 
Print.  Per.  Inst.  Dip.  Agents,  1885.  The  grant  of  the 
passport  lies  in  the  exercise  of  a discretionary  power 
vested  in  the  president,  and  by  him  delegated  to  his 
executive  agents.  The  refusal  of  an  application  for  a 
passport  is  in  effect  a refusal  to  extend  protection. 
Whatever  the  action  on  the  application  may  be,  it  is 
not  open  to  appeal.  It  is  in  the  power  of  congress  to 
censure  the  action  by  criticism  of  the  exercise  of  the 
discretionary  power  by  the  executive  or  his  agents. 

Applications  have  been  refused  to  naturalized  citi- 
zens for  reason  of  inference  drawn  from  their  lono^ 
residence  abroad  and  other  circumstances  to  the  effect 
that  they  had  abandoned  their  American  citizenship. 
Mr.  Fish  to  Mr.  Lockwood,  Oct.  27,  1874,  MSS.  Mr. 
Fish  to  Mr.  Ehrenbacher,  June  5,  1875,  MSS.  Mr. 
Blaine  gave  Mr.  Kasson,  March  31, 1881,  the  following 
instructions : “ A naturalized  citizen  of  the  United 

States  who  returns  to  his  country  of  origin  and  there 
marries,  settles  and  remains  twenty  years  is  not  enti- 
tled to  a passport  as  a citizen  of  the  United  States.” 

Mr.  Bayard  gave  to  Mr.  Lee,  Oct.  2,  1885,  the  fol- 
lowing instructions : When  an  Austrian  subject,  af- 


IN  THE  UNITED  STATES. 


303 


ter  having  been  naturalized  in  the  United  States,  re- 
turns to  the  country  of  his  origin  on  a passport  dated 
June  17,  1881,  and  there  resides  four  years,  and  then 
applies  for  a new  passport,  such  passport  ought  not  to 
be  granted  without  proof  that  this  residence  was  meant 
by  him  to  be  temporary  and  exceptional.” 

Under  these  rules  it  will  not  be  maintained  that  in 
the  respective  countries  the  applicants  become  citizens 
of  those  countries.  When  the  president  of  the  United 
States  declares  that  one  of  his  fellow-citizens  has  aban- 
doned his  citizenship,  he  does  not  thereby  make  him  a 
citizen  of  a foreign  country. 

The  French  rule  that  continued  residence  abroad  for 
ten  years  works  a loss  of  French  citizenship  does  not 
constitute  the  Frenchman  a citizen  of  the  United 
States  because  he  resided  in  the  United  States  during 
that  period  of  time.  Even  in  case  of  banishment  the 
citizenship  is  not  destroyed.  1 Phillimore  Int.  Law, 
pp.  380,  381.  Under  section  1993,  Revised  Statutes 
of  the  United  States,  the  rights  of  citizenship  shall 
not  descend  to  children  whose  fathers  never  resided  in 
the  United  Statos.  This  does  not  constitute  them  cit- 
izens of  a foreign  country.  There  must  be  a co-opera- 
tion of  the  laws  of  that  country  by  which  such 
persons  become  citizens.  The  action  of  our  authorities 
alone  is  not  sufficient  to  work  the  change  against  the 
volition  of  the  citizen.  14  Op.  Atty.-Genls.  154. 

The  theory  and  the  practice  proceed  upon  the  prin- 
ciple that  citizenship  involves  duties  and  obligations 
as  well  as  rights,  and  an  evasion  of  the  duties  and  ob- 
ligations by  continued  residence  abroad  works  a for- 
feiture of  the  right  to  protection  from  the  authorities 


304 


THE  LAW  OF  CITIZENSHIP 


of  the  United  States.  Mr.  Fish  to  Mr.  Niles,  Oct.  30, 
1871.  Mr.  Fish  to  Mr.  Colfax,  March  12,  1872.  Mr. 
Fish  to  Mr.  Beardsley,  April  28, 1873.  Mr.  Evarts  to 
Mr.  Logan,  March  9,  1881,  MSS. 

There  exists  between  the  citizens  of  a country  a 
contract,  either  express  or  implied,  through  the  medi- 
ation of  their  governmental  authorities,  to  afford  pro- 
tection at  home  and  abroad.  In  order  to  insure  a per- 
formance of  the  contract  the  exercise  of  absolute  good 
faith  is  essential.  When  abroad  and  in  the  exercise  of 
proper  conduct  toward  the  citizens  of  a foreign  gov- 
ernment, no  infraction  of  his  rights  should  be  permit- 
ted, and  in  case  there  is  an  infringement  of  his  rights 
the  citizen  is  entitled  to  a claim  for  damages,  to  be 
presented  in  his  behalf  through  the  proper  diplomatic 
channels  of  communication  between  cyovernments. 

The  executive  must  pass  upon  two  questions ; first, 
his  relation  of  good  faith  to  his  fellow-citizens,  and 
second,  his  conduct  toward  the  citizens  of  the  country 
from  whom  he  seeks  damao:es.  Then  comes  the  further 
question  whether  or  not  he  is  entitled  to  protection, 
and  under  this  consideration  necessarily  follow  his 
relations  to  his  fellow-citizens  in  matters  of  mainte- 
nance of  the  government  and  personal  service.  Mr. 
Seward  to  Mr.  Asboth,  March  27,  1867.  Mr.  Fish  to 
Mr.  Davis,  Nov.  21,  1874,  MSS.  It  would  seem  ex- 
traordinary for  a citizen  who  had  resided  abroad  for 
twenty  years,  and  during  that  time  had  made  no  con- 
tributions or  rendered  no  personal  service,  to  expect 
his  fellow-citizens  to  extend  protection  without  an  in- 
vestigation of  his  good  faith  toward  them.  The  power 
to  refuse  protection  and  the  power  to  decide  on  and 


IN  THE  UNITED  STATES. 


305 


present  a claim  for  damages  to  a foreign  government 
is  discretionary  in  the  executive,  who  may  exercise  his 
offices  after  a consideration  of  all  the  circumstances 
pertaining  to  each  individual  case. 

The  principle  should  not  be  contested  that  each  citi- 
zen should  preserve  the  utmost  good  faith  toward  his 
fellow-citizens  in  order  to  enjoy  equal  rights  and  privi- 
leges at  home  and  equal  protection  when  abroad. 


39 


APPENDIX 


I. 

UNITED  STATES  NATURALIZATION  LAWS. 

AN  ACT  to  establish  an  uniform  rule  of  naturalization  and  to  repeal  the 
acts  heretofore  passed  on  that  subject. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  in  Congress  assembled,  That  any  alien  being  a 
free  white  person  may  be  admitted  to  become  a citizen  of  the 
United  States  or  any  of  them  on  the  following  conditions  and 
not  otherwise: 

First.  That  he  shall  have  declared  on  oath  or  affirmation  be- 
fore the  supreme,  superior,  district  or  circuit  court  of  some  one 
of  the  states  or  of  the  territorial  districts  of  the  United  States  or 
a circuit  or  district  court  of  the  United  States  three  years  at  least 
before  his  admission  that  it  was  bona  fide  his  intention  to  be- 
come a citizen  of  the  United  States  and  to  renounce  forever  all 
allegiance  and  fidelity  to  any  foreign  prince,  potentate,  state  or 
sovereignty  whatever  and  particularly  by  name  the  prince,  poten- 
tate, state  or  sovereignty  whereof  such  alien  may  at  the  time  be 
a citizen  or  subject. 

Secondly.  That  he  shall  at  the  time  of  his  application  declare 
on  oath  or  affirmation  before  some  one  of  the  courts  aforesaid 
that  he  will  support  the  constitution  of  the  United  States,  and 
that  he  doth  absolutely  and  entirely  renounce  and  abjure  all 
allegiance  and  fidelity  to  every  foreign  prince,  potentate,  state 
or  sovereignty  whereof  he  was  before  a citizen  or  subject,  which 
proceedings  shall  be  recorded  before  the  clerk  of  the  court. 

Thirdly.  That  the  court  admitting  such  alien  shall  be  satisfied 
that  he  has  resided  within  the  United  States  five  years  at  least 
and  within  the  state  or  territory  where  such  court  is  at  the  time 


308 


APPENDIX. 


held,  one  year  at  least;  and  it  shall  further  appear  to  their  satis- 
faction, that  during  that  time  he  has  behaved  as  a man  of  a 
good  moral  character,  attached  to  the  principles  of  the  constitu- 
tion of  the  United  States,  and  well-disposed  to  the  good  order 
and  happiness  of  the  same : Provided^  That  the  oath  of  the  appli- 
cant shall  in  no  case  be  allowed  to  prove  his  residence. 

Fourthly.  That  in  case  the  alien  applying  to  be  admitted  to 
citizenship  shall  have  borne  any ’hereditary  title,  or  been  of  any 
of  the  orders  of  nobility  in  the  kingdom  or  state  from  which  he 
came,  he  shall,  in  addition  to  the  above  requisites,  make  an  ex- 
press renunciation  of  his  title  or  order  of  nobility  in  the  court  to 
which  his  application  shall  be  made;  which  renunciation  shall 
be  recorded  in  the  said  court:  Provided,  That  no  alien  who  shall 
be  a native  citizen,  denizen  or  subject  of  any  country,  state  or 
sovereign  with  whom  the  United  States  shall  be  at  war  at  the 
time  of  his  application,  shall  be  then  admitted  to  be  a citizen  of 
the  United  States. 

Sec.  3.  And  whereas  doubts  have  arisen  whether  certain  courts 
of  record  in  some  of  the  states  are  included  within  the  descrip- 
tion of  district  or  circuit  courts:  Be  it  further  enacted.  That 
every  court  of  record  in  any  individual  state  having  common-law 
jurisdiction,  and  a seal  and  clerk  or  prothonotary,  shall  be  con- 
sidered as  a district  court  within  the  meaning  of  this  act;  and 
every  alien  who  may  have  been  naturalized  in  any  such  court 
shall  enjoy,  from  and  after  the  passing  of  the  act,  the  same 
rights  and  privileges  as  if  he  had  been  naturalized  in  a district 
or  circuit  court  of  the  United  States. 

Sec.  4.  And  he  it  further  enacted.  That  the  children  of  per- 
sons duly  naturalized  under  any  of  the  laws  of  the  United  States, 
or  who,  previous  to  the  passing  of  any  law  on  that  subject  by  the 
government  of  the  United  States,  may  have  become  citizens  of 
any  one  of  the  said  states,  under  the  laws  thereof,  being  under 
the  age  of  twenty-one  years  at  the  time  of  their  parents  being  so 
naturalized  or  admitted  to  the  rights  of  citizenship,  shall,  if 
dwelling  in  the  United  States,  be  considered  as  citizens  of  the 
United  States;  and  the  children  of  persons  who  now  are  or  have 
been  citizens  of  the  United  States  shall,  though  born  out  of  the 
limits  and  jurisdiction  of  the  United  States,  be  considered  as 


APPENDIX. 


309 


citizens  of  the  United  States:  Provided,  That  the  right  of  cit- 
izenship shall  not  descend  to  persons  whose  fathers  have  never 
resided  within  the  United  States:  Provided,  also,  That  no  person 
heretofore  proscribed  by  any  State,  or  who  has  been  legally  con- 
victed of  having  joined  the  army  of  Great  Britain  during  the 
late  war,  shall  be  admitted  a citizen  as  aforesaid  without  the 
consent  of  the  legislature  of  the  State  in  which  such  person  was 
proscribed. 

Sec.  5.  And  le  it  further  enacted.  That  all  acts  heretofore 
passed  respecting  naturalization  be,  and  the  same  are,  hereby 
repealed. 

Approved  April  14,  1802. 


AN  ACT  in  addition  to  an  act  entitled  ‘‘  An  act  to  establish  an  uniform 
rule  of  naturalization,  and  to  repeal  the  acts  heretofore  passed  on  that 
subject. 

Sec.  2.  And  he  it  further  enacted.  That  when  any  alien  who 
shall  have  complied  with  the  first  condition  specified  in  the  first 
section  of  the  said  original  act,  and  who  shall  have  pursued  the 
directions  prescribed  in  the  second  section  of  the  said  act,  may 
die  before  he  is  actually  naturalized,  the  widow  and  the  children 
of  such  alien  shall  be  considered  as  citizens  of  the  United  States, 
and  shall  be  entitled  to  all  rights  and  privileges  as  such,  upon 
taking  the  oaths  prescribed  by  law. 

Approved  March  26,  1804. 


AN  ACT  for  the  regulation  of  seamen  on  board  the  public  and  private 
vessels  of  the  United  States. 

Sec.  12.  And  he  it  further  enacted.  That  no  person  who  shall 
arrive  in  the  United  States  from  and  after  the  time  when  this 
act  shall  take  efiect,  shall  be  admitted  to  become  a citizen  of  the 
United  States,  who  shall  not  for  the  continued  term  of  five  years 
next  preceding  his  admission  as  aforesaid  have  resided  within 
the  United  States,  without  being  at  any  time  during  the  said 
five  years  out  of  the  territory  of  the  United  States. 

Approved  March  3,  1813. 


310 


APPENDIX. 


AN  ACT  in  further  addition  to  “ An  act  to  establish  an  uniform  rule  of 

naturalization,  and  to  repeal  the  acts  heretofore  passed  on  that  subject.” 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives  of 
the  lJ7iited  States  of  America  m Congress  assembled,  That  any 
alien,  being  a free  white  person,  and  a minor,  under  the  age  of 
twenty-one  years,  who  shall  have  resided  in  the  United  States 
three  years  next  preceding  his  arriving  at  the  age  of  twenty-one 
years,  and  who  shall  have  continued  to  reside  therein  to  the  time 
he  may  make  application  to  be  admitted  a citizen  thereof,  may, 
after  he  arrives  at  the  age  of  twenty-one  years,  and  after  he  shall 
have  resided  five  years  within  the  United  States,  including  the 
three  years  of  his  minority,  be  admitted  a citizen  of  the  United 
States  without  having  made  the  declaration  required  in  the  first 
condition  of  the  first  section  of  the  act  to  which  this  is  an  addi- 
tion, three  years  previous  to  his  admission:  Provided,  Such  alien 
shall  make  the  declaration  required  therein  at  the  time  of  his  or 
her  admission;  and  shall  further  declare,  on  oath,  and  prove,  to 
the  satisfaction  of  the  court,  that  for  three  years  next  preceding 
it  has  been  the  bona  fide  intention  of  such  alien  to  become  a cit- 
izen of  the  United  States,  and  shall  in  all  other  respects  comply 
with  the  laws  in  regard  to  naturalization. 

Sec.  2.  Aoid  be  it  further  enacted.  That  no  certificates  of  cit- 
izenship or  naturalization  heretofore  obtained  from  any  court  of 
record  within  the  United  States  shall  be  deemed  invalid  in  con- 
sequence of  an  omission  to  comply  with  the  requisition  of  the 
first  section  of  the  act  entitled  An  act  relative  to  evidence  in 
cases  of  naturalization,”  passed  the  twenty-second  day  of  March, 
one  thousand  eight  hundred  and  sixteen. 

Sec.  3.  And  be  it  further  enacted,  That  the  declaration  re- 
quired by  the  first  condition  specified  in  the  first  section  of  the 
act  to  which  this  is  an  addition,  shall,  if  the  same  has  been  bona 
fide  made  before  the  clerk  of  either  of  the  courts  in  the  said  con- 
dition named,  be  as  valid  as  if  it  had  been  made  before  the  said 
courts  respectively. 

Sec.  4.  A^id  be  it  further  enacted.  That  a declaration  by  any 
alien,  being  a free  white  person,  of  his  intended  application  to 
be  admitted  a citizen  of  the  United  States,  made  in  the  manner 
and  form  prescribed  in  the  first  condition  specified  in  the  first 


APPENDIX. 


311 


section  of  the  act  to  which  this  is  in  addition,  two  years  before 
his  admission,  shall  be  a sufficient  compliance  with  said  condi- 
tion, any  thing  in  the  said  act,  or  in  any  subsequent  act,  to  the 
contrary  notwithstanding. 

Approved  May  26,  1824. 


AN  ACT  to  amend  the  act  entitled  “ An  act  for  the  regulation  of  seamen 
on  board  the  public  and  private  vessels  of  the  United  States,”  passed  the 
third  of  March,  eighteen  hundred  and  thirteen. 

Be  it  enacted  by  the  Senate  a7id  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled^  That  the 
last  clause  of  the  twelfth  section  of  the  act  hereby  amended,  con- 
sisting of  the  following  words,  to  wit,  ‘^without  being  at  any 
time  during  the  said  five  years  out  of  the  territory  of  the  United 
States,^’  be,  and  the  same  is  hereby,  repealed. 

Approved  June  26,  1848. 


AN  ACT  to  secure  the  right  of  citizenship  to  children  of  citizens  of  the 
United  States  born  out  of  the  limits  thereof. 

Be  it  enacted  by  the  Seriate  and  House  of  Representatives  of 
the  United  States  of  A^nerica  in  Congress  assembled.  That  per- 
sons heretofore  born,  or  hereafter  to  be  born,  out  of  the  limits 
and  jurisdiction  of  the  United  States,  whose  fathers  were  or  shall 
be  at  the  time  of  their  birth  citizens  of  the  United  States,  shall 
be  deemed  and  considered  and  are  hereby  declared  to  be  citizens 
of  the  United  States:  Provided,  however.  That  the  rights  of  cit- 
izenship shall  not  descend  to  persons  whose  fathers  never  resided 
in  the  United  States. 

Sec.  2.  And  be  it  further  enacted.  That  any  woman  who  might 
lawfully  be  naturalized  under  the  existing  laws,  married,  or  who 
shall  be  married  to  a citizen  of  the  United  States,  shall  be  deemed 
and  taken  to  be  a citizen. 

Approved  February  10,  1855. 


Second  Session,  Thirty -seventh  Congress,  chap.  200. 
Section  21.  And  be  it  further  enacted.  That  any  alien  of  the 
age  of  twenty-one  years  and  upwards,  who  has  enlisted  or  shall 


312 


APPENDIX. 


enlist  in  the  armies  of  the  United  States,  either  the  regular  or 
the  volunteer  forces,  and  has  been  or  shall  be  hereafter  honorably 
discharged,  may  be  admitted  to  become  a citizen  of  the  United 
States  upon  his  petition,  without  any  previous  declaration  of  his 
intention  to  become  a citizen  of  the  United  States,  and  that  he 
shall  not  be  required  to  prove  more  than  one  year^’s  residence 
within  the  United  States  previous  to  his  application  to  become 
such  citizen;  and  that  the  court  admitting  such  alien  shall,  in 
addition  to  such  proof  of  residence  and  good  moral  character  as 
is  now  provided  by  law,  be  satisfied  by  competent  proof  of  such 
person  having  been  honorably  discharged  from  the  service  of  the 
United  States  as  aforesaid. 

Approved  July  17,  1862. 

Article  XIV  of  the  Constitution  of  the  United  States,  adopted 
July  28,  1868. 

Section  1.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  state  wherein  they  reside.  No  state 
shall  make  or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States;  nor  shall  any 
state  deprive  any  person  of  life,  liberty  or  property,  without  due 
process  of  law;  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws. 


AN  ACT  to  amend  the  naturalization  laws  and  to  punish  crimes  against 
the  same  and  for  other  purposes. 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  in  all 
cases  where  any  oath,  affirmation  or  affidavit  shall  be  made  or 
taken  under  or  by  virtue  of  any  act  or  law  relating  to  the 
naturalization  of  aliens,  or  in  any  proceedings  under  such  acts 
or  laws,  and  any  person  or  persons  taking  or  making  such  oath, 
affirmation  or  affidavit,  shall  knowingly  swear  or  affirm  falsely, 
the  same  shall  be  deemed  and  taken  to  be  perjury,  and  the  per- 
son or  persons  guilty  thereof  shall  upon  conviction  thereof  be 
sentenced  to  imprisonment  for  a term  not  exceeding  five  years, 


APPENDIX. 


313 


and  not  less  than  one  year,  and  to  a fine  not  exceeding  one  thou- 
sand dollars. 

Sec.  2.  And  he  it  further  enacted,  That  if  any  person  apply- 
ing to  be  admitted  a citizen,  or  appearing  as  a witness  for  any 
such  person,  shall  knowingly  personate  any  other  person  than 
himself,  or  falsely  appear  in  the  name  of  a deceased  person,  or 
in  an  assumed  or  fictitious  name,  or  if  any  person  shall  falsely 
make,  forge  or  counterfeit  any  oath,  affirmation,  notice,  affida- 
vit, certificate,  order,  record,  signature  or  other  instrument, 
paper  or  proceeding  required  or  authorized  by  any  law  or  act 
relating  to  or  providing  for  the  naturalization  of  aliens;  or  shall 
utter,  sell,  dispose  of  or  use  as  true  or  genuine,  or  for  any  un- 
lawful purpose,  any  false,  forged,  antedated  or  counterfeit  oath, 
affirmation,  notice,  certificate,  order,  record,  signature,  instru- 
ment, paper  or  proceeding  as  aforesaid;  or  sell  or  dispose  of,  to 
any  person  other  than  the  person  for  whom  it  was  originally 
issued,  any  certificate  of  citizenship,  or  certificate  showing  any 
person  to  be  admitted  a citizen;  or  if  any  person  shall  in  any 
manner  use  for  the  purpose  of  registering  as  a voter,  or  as  evi- 
dence of  a right  to  vote,  or  otherwise,  unlawfully,  any  order, 
certificate  of  citizenship,  or  certificate,  judgment  or  exemplifica- 
tion, showing  such  person  to  be  admitted  to  be  a citizen,  whether 
heretofore  or  hereafter  issued  or  made,  knowing  that  such  order 
or  certificate,  judgment  or  exemplification  has  been  unlawfully 
issued  or  made;  or  if  any  person  shall  unlawfully  use,  or  attempt 
to  use,  any  such  order  or  certificate,  issued  to  or  in  the  name  of 
any  other  person,  or  in  a fictitious  name,  of  the  name  of  a de- 
ceased person;  or  use,  or  attempt  to  use,  or  aid,  or  assist,  or 
participate  in  the  use  of  any  certificate  of  citizenship,  knowing 
the  same  to  be  forged,  or  counterfeit,  or  antedated,  or  knowing 
the  same  to  have  been  procured  by  fraud,  or  otherwise  unlaw- 
fully obtained;  or  if  any  person,  and  without  lawful  excuse, 
shall  knowingly  have  or  be  possessed  of  any  false,  forged,  ante- 
dated or  counterfeit  certificate  of  citizenship,  purporting  to 
have  been  issued  under  the  provisions  of  any  law  of  the  United 
States  relating  to  naturalization,  knowing  such  certificate  to  be 
false,  forged,  antedated  or  counterfeit,  with  intent  unlawfully 
to  use  the  same;  or  if  any  person  shall  obtain,  accept  or  receive 
40  > 


314 


APPENDIX. 


any  certificate  of  citizenship  known  to  such  person  to  have  been 
procured  by  fraud  or  by  the  use  of  any  false  name,  or  by  means 
of  any  false  statement  made  with  intent  to  procure,  or  to  aid  in 
procuring,  the  issue  of  such  certificate,  or  known  to  such  person 
to  be  fraudulently  altered  or  antedated ; or  if  any  person  who 
has  been  or  may  be  admitted  to  be  a citizen  shall,  on  oath  or 
affirmation,  or  by  affidavit,  knowingly  deny  that  he  has  been  so 
admitted,  with  intent  to  evade  or  avoid  any  duty  or  liability  im- 
posed or  required  by  law,  every  person  so  offending  shall  be 
deemed  and  adjudged  guilty  of  felony,  and,  on  conviction  thereof 
shall  be  sentenced  to  be  imprisoned  and  kept  at  hard  labor  for 
a period  not  less  than  one  year  nor  more  than  five  years,  or  be 
fined  in  a sum  not  less  than  three  hundred  dollars  nor  more 
than  one  thousand  dollars,  or  both  such  punishments  may  be  im- 
posed, in  the  discretion  of  the  court.  And  every  person  who 
shall  knowingly  and  intentionally  aid  or  abet  any  person  in  the 
commission  of  any  such  felony,  or  attempt  to  do  any  act  hereby 
made  felony,  or  counsel,  advise  or  procure,  or  attempt  to  pro- 
cure, the  commission  thereof,  shall  be  liable  to  indictment  and 
punishment  in  the  same  manner  and  to  the  same  extent  as  the 
principal  party  guilty  of  such  felony,  and  such  person  may  be 
tried  and  convicted  thereof  without  the  previous  conviction  of 
such  principal. 

Sec.  3.  And  be  it  further  enacted,  That  any  person  who  shall 
knowingly  use  any  certificate  of  naturalization  heretofore  granted 
by  any  court,  or  which  shall  hereafter  be  granted,  which  has 
been,  or  shall  be,  procured  through  fraud  or  by  false  evidence, 
or  has  been  or  shall  be  issued  by  the  clerk,  or  any  other  officer 
of  the  court  without  any  appearance  and  hearing  of  the  applicant 
in  court  and  without  lawful  authority;  and  any  person  who  shall 
falsely  represent  himself  to  be  a citizen  of  the  United  States, 
without  having  been  duly  admitted  to  citizenship,  for  any  fraud- 
ulent purpose  whatever,  shall  be  deemed  guilty  of  a misde- 
meanor, and  upon  conviction  thereof,  in  due  course  of  law,  shall 
be  sentenced  to  pay  a fine  of  not  exceeding  one  thousand  dollars, 
or  be  imprisoned  not  exceeding  two  years,  either  or  both,  in  the 
discretion  of  the  court  taking  cognizance  of  the  same. 

And  be  it  further  enacted,  That  the  provision  of  this  act  shall 


APPENDIX. 


315 


apply  to  all  proceedings  had  or  taken,  or  attempted  to  be  had  or 
taken,  before  any  court  in  which  any  proceeding  for  naturaliza- 
tion shall  be  commenced,  had  or  taken,  or  attempted  to  be 
commenced;  and  the  courts  of  the  United  States  shall  have 
jurisdiction  of  all  offenses  under  the  provisions  of  this  act,  in  or 
before  whatsoever  court  or  tribunal  the  same  shall  have  been 
committed. 

Approved  July  14,  1873. 


AN  ACT  to  authorize  tho  appointment  of  shipping  commissioners  by  the 
several  circuit  courts  of  the  United  States,  to  superintend  the  shipping 
and  discharge  of  seamen  engaged  in  merchant  ships  belonging  to  the 
United  States,  and  for  the  further  protection  of  seamen. 

Sec.  29.  That  every  seaman,  being  a foreigner,  who  declares 
his  intention  of  becoming  a citizen  of  the  United  States  in  any 
competent  court,  and  shall  have  served  three  years  on  board  of  a 
merchant  ship  or  ships  of  the  United  States  subsequent  to  the 
date  of  such  declaration,  may,  on  his  application  to  any  compe- 
tent court,  and  the  production  of  his  certificate  of  discharge  and 
good  conduct  during  that  time,  together  with  the  certificate  of 
his  declaration  of  intention  to  become  a citizen,  be  admitted  a 
citizen  of  the  United  States;  and  every  seaman,  being  a foreigner, 
shall,  after  his  declaration  of  intention  to  become  a citizen  of 
the  United  States,  and  shall  have  served  said  three  years,  be 
deemed  a citizen  of  the  United  States  for  the  purpose  of  mann- 
ing and  serving  on  board  any  merehant  ship  of  the  United  States, 
any  thing  to  the  contrary  in  any  previous  act  of  congress  not- 
withstanding; but  such  seaman  shall,  for  all  purposes  of  protec- 
tion as  an  American  citizen,  be  deemed  such,  after  the  filing  of 
his  declaration  of  intention  to  become  such  citizen. 

Approved  June  7,  1872. 


EXPATRIATION. 

AN  ACT  concerning  the  rights  of  American  citizens  in  foreign  states. 

Whereas,  The  right  of  expatriation  is  a natural  and  inherent 
right  of  all  people,  indispensable  to  the  enjoyment  of  the  rights 
of  life,  liberty  and  the  pursuit  of  happiness;  and  whereas  in  the 
recognition  of  this  principle  this  government  has  freely  received 


316 


APPENDIX. 


emigrants  from  all  nations,  and  invested  them  with  the  rights 
of  citizenship;  and  whereas  it  is  claimed  that  such  American 
citizens,  with  their  descendants,  are  subjects  of  foreign  states, 
owing  allegiance  to  the  governments  thereof;  and  whereas  it  is 
necessary  to  the  maintenance  of  public  peace  that  this  claim  of 
foreign  allegiance  should  be  promptly  and  finally  disavowed: 
Therefore, 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  any 
declaration,  instruction,  opinion,  order  or  decision  of  any  officers 
of  this  government  which  denies,  restricts,  impairs  or  questions 
the  right  of  expatriation,  is  hereby  declared  inconsistent  with 
the  fundamental  principles  of  this  government. 

Sec.  2.  A nd  be  it  further  enacted,  That  all  naturalized  citizens 
of  the  United  States,  while  in  foreign  states,  shall  be  entitled  to, 
and  shall  receive  from  this  government,  the  same  protection  of 
persons  and  property  that  is  accorded  to  native-born  citizens  in 
like  situations  and  circumstances. 

Sec.  3.  Ayid  be  it  further  enacted,  That  whenever  it  shall  be 
made  known  to  the  president  that  any  citizen  of  the  United 
States  has  been  unjustly  deprived  of  his  liberty  by  or  under  the 
authority  of  any  foreign  government,  it  shall  be  the  duty  of  the 
president  forthwith  to  demand  of  that  government  the  reasons 
for  such  imprisonment,  and  if  it  appears  to  be  wrongful  and  in 
violation  of  the  rights  of  American  citizenship,  the  president 
shall  forthwith  demand  the  release  of  such  citizen,  and  if  the 
release  so  demanded  is  unreasonably  delayed  or  refused,  it  shall 
be  the  duty  of  the  president  to  use  such  means,  not  amounting 
to  acts  of  war,  as  he  may  think  necessary  and  proper  to  obtain 
or  effectuate  such  release,  and  all  the  facts  and  proceedings  rela- 
tive thereto  shall  as  soon  as  practicable  be  communicated  by  the 
president  to  Congress. 

Approved  July  27,  1868. 


APPENDIX. 


317 


Extract  from  the  analytical  index  to  the  Treaties  and  Conven- 
tions of  the  United  States  with  other  powers.” 

Natuealization  : 

citizens  of  one  nationality  are  to  be  deemed  and  taken  to 
have  become  citizens  of  the  other,  who  during  a con- 
tinuous residence  of  five  years  in  the  territories  of  the 
other  have  become  naturalized  there  — Austria,  Sweden 
and  Norway;  who  have  resided  uninterruptedly  there  five 
years,  and  before,  during  or  after  that  time,  have  be- 
come or  shall  become  naturalized  — Baden;  who  have  be- 
come or  shall  become  naturalized,  and  shall  have  resided 
there  uninterruptedly  five  years  — Bavaria,  Hesse,  Mexico, 
North  Germany;  as  explained  in  the  protocol  — Wurtem- 
berg;  who  may  or  shall  have  been  naturalized  there  — 
Belgium,  Denmark;  who  have  become  or  shall  become 
naturalized  — Great  Britain. 

the  declaration  of  intention  to  become  a citizen  has  not  the 
effect  of  citizenship  — Austria,  Baden,  Bavaria,  Hesse, 
Mexico,  North  Germany,  Sweden  and  Norway,  Wurtem- 
berg. 

naturalized  citizens  are  liable  on  return  to  their  original 
country  to  be  tried  and  punished  for  offenses  committed 
before  emigration,  subject  to  the  limitations  established 
by  law  — Austria,  Baden,  Bavaria,  Belgium,  Hesse, 
Mexico,  North  Germany,  Sweden  and  Norway,  Wurtem- 
berg;  but  not  for  emigration  itself  — Bavaria,  Sweden 
and  Norway. 

when  a naturalized  citizen  remains  liable  to  trial  and 
punishment  for  violation  of  laws  of  his  old  country  rela- 
tive to  military  duty  — Austria,  Baden,  Belgium,  Swe- 
den and  Norway. 

a naturalized  citizen  may  renounce  his  acquired  eitizenship 
— Austria,  Baden,  Bavaria,  Hesse,  Mexico,  North  Ger- 
many, Sweden  and  Norway,  Wurtemberg;  but  this  re- 
nunciation does  not  entitle  him  to  reeover  his  former 
citizenship  without  the  consent  of  the  government  — Ba- 
varia. 


318 


APPENDIX. 


a return  of  the  naturalized  citizen  to  his  original  country  is 
not  of  itself  a renunciation  — Austria,  Baden, 
no  fixed  period  of  residence  in  his  original  country  works  of 
itself  a renunciation  — Austria,  Baden, 
a residence  in  the  old  country  without  intent  to  return 
works  a renunciation  — Bavaria,  Denmark,  Hesse,  Mexico, 
North  Germany,  Sweden  and  Norway,  Wurtemberg. 
the  intent  not  to  return  may  be  held  to  exist  when  the  resi- 
dence is  for  more  than  two  years  — Bavaria,  Denmark, 
Hesse,  Mexico,  North  Germany,  Sweden  and  Norway, 
Wurtemberg;  but  that  presumption  may  be  rebutted  by 
evidence  — Mexico. 

naturalized  citizens  may  re-acquire  their  lost  citizenship  in 
the  old  country  in  the  manner  provided  by  law  — Bel- 
gium, Denmark;  in  the  manner  and  on  the  conditions 
prescribed  by  the  old  government  — Great  Britain,  Swe- 
den and  Norway. 

provisions  concerning  citizenship  of  inhabitants  of  territories 
annexed  to  the  United  States  — France,  Spain,  Mexico, 
Russia. 

III. 

Extracts  from  the  analytical  index  to  the  treaties  of  the  United 
States  with  other  powers,  showing  luhat  privileges  are  conferred 
upon  aliens  in  the  United  States  and  upon  citizens  of  the 
United  States  hy  other  countries. 

Asylum: 

vessels  and  citizens  seeking  asylum  by  reason  of  stress  of 
weather  to  be  treated  with  humanity,  and  shall  be  allowed 
to  repair  and  depart  — Bolivia,  Brazil,  Colombia  (New 
Grenada),  Ecuador,  France  (obsolete),  Guatemala, 
Hayti,  Mexico,  Morocco  (as  to  United  States  vessels), 
Netherlands  (obsolete),  Nicaragua,  Portugal,  Prussia, 
San  Salvador,  Sardinia,  Spain,  Sweden  (see  Sweden  and 
Norway). 

to  be  exempt  from  tlie  payment  of  duties  on  vessel  or  cargo 
unless  entered  for  consumption  — Hawaiian  Islands, 
Morocco  (as  to  American  vessels),  Sardinia. 


APPENDIX. 


319 


to  be  subject  to  no  duties  or  charges  except  pilotage,  unless 
remaining  longer  than  forty-eight  hours  in  port  — Colom- 
bia (New  Grenada). 

unloading  and  reloading  not  to  be  considered  an  act  of  com- 
merce — Sardinia,  Two  Sicilies. 

vessels  seeking  asylum  to  be  treated  as  national  vessels  — 
Sardinia,  Two  Sicilies. 

shelter  not  to  be  given  in  ports  of  one  power  to  enemies  of 
the  other  power  who  have  captured  prizes  from  the  other 
at  sea  — France,  Great  Britain. 

consulates  not  to  be  used  as  asylum  — Germany,  Italy. 

Aubaine,  Droit  de:  [See  Personal  Property,”  Real  Es- 
tate. ” 

abolished  by  treaty  with  Bavaria,  France  (obsolete),  Hesse, 
Nassau,  Saxony,  Wurtemberg. 

Detraction,  Droit  de: 

abolished  by  treaty  with  Bavaria,  France  (obsolete),  Hanover, 
Hanseatic  Eepublics,  Hesse,  Nassau,  Saxony,  Spain, 
Wurtemberg,  Sweden. 

Personal  Property: 

citizen  of  each,  in  the  country  of  the  other,  may  own  per- 
sonal property,  and  may  dispose  of  it  by  gift,  will,  or  in 
any  other  way,  and  may  take  such  property  by  gift,  pur- 
chase, will  or  succession,  paying  only  such  dues  as  the  in- 
habitant of  the  country  would  pay  in  such  case — Austria, 
Bavaria,  Bolivia,  Brazil,  Brunswick  and  Luneburg,  Colom- 
bia (New  Grenada),  Costa  Kica,  Dominican  Republic, 
Ecuador, France,  Guatemala,  Hanover,  Netherlands  (obso- 
lete), Mecklenburg-Schwerin,  Mexico,  Oldenburg,  Hanse- 
atic Republics,  Hawaiian  Islands,  Hayti,  Hesse-Cassel, 
Honduras,  Italy,  Nassau,  Nicaragua,  Orange  Free  State, 
Paraguay,  Portugal,  Prussia,  Russia,  San  Salvador,  Sar- 
dinia, Saxony,  Spain,  Swiss  Confederation,  Two  Sicilies, 
Wurtemberg. 

citizens  of  each  in  the  country  of  the  other  may  own  and 


320 


APPENDIX. 


succeed  as  above,  and  on  removal  of  the  property  it  shall 
be  exempted  from  all  duty  called  Droit  de  detraction  ’’ 
— France  (obsolete),  Sweden.  “ !Sweden  and  Nor- 

in  case  of  the  absence  of  persons  who  would  be  entitled  to 
personal  property  so  situated  on  the  death  of  the  owner, 
the  property  shall  receive  the  same  care  which  would  be 
bestowed  upon  the  property  of  a native  — Austria,  Ba- 
varia, Brunswick  and  Luneburg,  Dominican  Republic, 
Hanover,  Hawaiian  Islands,  Hayti,  Hesse-Oassel,  Hon- 
durus,  Mecklenburg- Schwerin,  Nassau,  Orange  Free 
State,  Prussia,  Russia,  Sardinia,  Saxony,  Spain,  Swiss 
Confederation,  Two  Sicilies,  Wurtemberg. 

disputes  as  to  the  inheritance  of  such  property  shall  be  de- 
cided by  the  courts  of  the  country  where  the  property  is 
situated  — Austria,  Brunswick  and  Luneburg,  Dominican 
Republic,  Hanover,  Hawaiian  Islands,  Hayti,  Hesse- 
Cassel,  Honduras,  Mecklenburg-Schwerin,  Nassau,  Orange 
Free  State,  Prussia,  Russia,  Sardinia,  Saxony,  Spain, 
Swiss  Confederation,  Two  Sicilies,  Wurtemberg. 

Real  Estate: 

citizens  and  subjects  of  each  nation  are  to  be  on  the  footing 
of  the  most  favored  nation  in  the  territories  of  the  other 
— Italy. 

citizens  of  each  country  may  dispose  of  real  estate  in  the 
territories  of  the  other  by  will,  donation  or  otherwise  — 
France  (obsolete),  Bavaria,  Colombia  (New  Grenada), 
San  Salvador,  Two  Sicilies. 

their  heirs,  legatees  and  donees,  being  citizens  or  subjects 
of  the  other  contracting  party,  may  succeed  to  their  real 
estate  — Bavaria,  Colombia  (New  Grenada),  France 
(obsolete),  San  Salvador,  Two  Sicilies. 

citizens  of  each  country  may  dispose  of  real  estate  in  the 
territories  of  the  other,  where  the  laws  of  the  state  in 
. which  it  is  situated  permit  it  to  be  done  — Nicaragua, 
Swiss  Confederation. 

citizens  of  each  country  may  possess  real  estate  in  the  terri- 


APPENDIX. 


321 


tories  of  the  other,  and  dispose  of  it  in  the  same  manner 
as  citizens  can  — France,  San  Salvador, 
the  United  States  are  to  recommend  states  where  this  is  not 
permitted,  to  pass  laws  to  allow  it;  and  France  reserves 
the  right  of  establishing  reciprocity, 
where,  on  the  death  of  the  owner,  real  estate  in  the  terri- 
tories of  the  one  power  descends  upon  a citizen  of  the 
other,  who  is  disqualified  by  alienage  from  taking,  he 
shall  be  allowed  two  years  to  sell  the  land  and  withdraw 
the  proceeds  — Austria,  Bavaria,  Hesse,  Nassau,  Saxony, 
Wurtemberg. 

he  shall  be  allowed  three  years  — Brazil,  Ecuador,  Guate- 
mala, Hanseatic  Republics,  Swiss  Confederation, 
he  shall  have  the  longest  period  allowed  by  law  — Bolivia, 
Dominican  Republic. 

he  shall  be  allowed  the  time  allowed  by  the  law  of  the  state 
or  country  — Brunswick  and  Luneburg,  Nicaragua, 
Orange  Free  State,  Portugal,  Russia,  Swiss  Confederation, 
he  shall  be  allowed  a reasonable  time  — Hanover,  Hawaiian 
Islands,  Portugal,  Prussia,  Russia,  Sardinia,  Spain,  Meck- 
lenburg-Schweriu. 

the  time  allowed  may  be  prolonged  by  the  government  in 
whose  territories  the  land  is  situated  — Austria,  Hesse, 
Nassau,  Saxony,  Wurtemberg. 
the  tax  or  dues  charged  on  the  succession  or  withdrawal  is 
to  be  the  same  as  that  imposed  upon  natives  — Austria, 
Bavaria,  Bolivia,  Brazil,  Brunswick  and  Luneburg,  Co- 
lombia (New  Grenada),  Dominican  Republic,  Ecuador, 
France,  Nicaragua,  Orange  Free  State,  Portugal,  Russia, 
San  Salvador,  Sardinia,  Swiss  Confederation,  Two  Sicilies, 
such  tax  or  dues  to  be  the  same  as  imposed  upon  the  most 
favored  nation  — Hawaiian  Islands, 
there  shall  be  no  duties  of  detraction  — Bavaria,  France, 
Guatemala,  Hanover,  Hanseatic  Republics,  Hawaiian 
Islands,  Saxony,  Spain,  Prussia, 
the  property  of  absent  heirs  is  to  receive  the  same  care  as  if 
^ it  were  the  property  of  citizens  — Austria,  Bavaria, 
’Hesse,  Nassau,  Saxony,  Two  Sicilies,  Wurtemberg. 

41 


322 


APPENDIX. 


all  disputes  relating  to  such  real  estate  must  be  settled  be- 
fore the  courts  of  the  country  — Bavaria,  Hesse,  Nassau, 
Orange  Free  State,  Saxony,  Swiss  Confederation,  Two 
Sicilies,  Wurtemberg. 

Recipkocal  privileges  of  citizens  of  each  nation  within 

THE  TERRITORIES  OF  THE  OTHER: 

the  citizens  of  each  may  reside  in  the  territories  of  the  other, 
remaining  subject  to  the  laws  — Argentine  Confederation, 
Austria,  Bolivia,  Brazil,  Colombia  (New  Grenada),  Costa 
Rica,  Denmark,  Dominican  Republic,  Ecuador,  Great 
Britain  (obsolete),  Greece,  Guatemala,  Hanover,  Hawaiian 
Islands,  Hayti,  Honduras,  Italy,  Mecklenburg-Schwerin, 
Oldenburg,  Mexico,  Nicaragua,  Portugal,  Prussia,  Russia, 
San  Salvador,  Sardinia,  Sweden  and  Norway,  Swiss  Con- 
federation, Two  Sicilies,  Liberia, 
the  citizens  of  each  may  reside  in  the  territories  of  the  other 
— Borneo . 

vessels  and  effects  of  citizens  of  each  in  the  territories  of  the 
other  are  to  be  protected  and  defended  — Sweden  (see 
Sweden  and  Norway),  Tunis. 

citizens  of  each  being  within  the  territories  of  the  other 
shall  be  exempt  from  forced  military  service  — Argentine 
Confederation,  Costa  Rica,  Dominican  Republic,  France 
(obsolete),  Hawaiian  Islands,  Hayti,  Honduras,  Italy, 
Mexico,  Nicaragua,  Orange  Free  State,  Paraguay,  Switz- 
erland, Two  Sicilies, 
from  billeting  of  soldiers  — Two  Sicilies, 
from  contribution  in  kind  or  money  for  compensation  for 
personal  military  services  — Italy,  Two  Sicilies  [they 
shall  not  be  exempt  from  such  contribution  — Orange 
Free  State,  Swiss  Confederation], 
from  forced  loans  — Argentine  Confederation,  Bolivia,  Costa 
Rica,  Dominican  Republic,  Hawaiian  Islands,  Honduras, 
Nicaragua,  Paraguay,  Two  Sicilies, 
from  military  exactions  — Argentine  Confederation,  Costa 
Rica,  Dominican  Republic,  Hayti,  Honduras,  Nicaragua, 
Paraguay. 

from  contributions  — Bolivia,  Nicaragua. 


APPENDIX. 


323 


from  contributions  in  time  of  war,  in  which  case  property 
is  not  to  be  taken  without  compensation  paid  in  advance 

— Nicaragua;  without  compensation  on  the  same  footing 
as  natives  — Orange  ifree  State. 

from  extraordinary  contributions  not  general  and  established 
by  law  — Hawaiian  Islands,  Two  Sicilies, 
from  contributions  higher  than  those  paid  by  natives  — 
Costa  Kica,  Dominican  Eepublic,  Hayti,  Honduras, 
Mexico,  Orange  Free  State,  Paraguay, 
from  judicial  or  municipal  office  — Italy, 
the  citizens  of  each  shall  not  be  liable  to  the  embargo  or 
detention  of  their  vessels,  cargoes,  merchandise,  or  effects 

— Bolivia,  Brazil,  Colombia  (New  Grenada),  Ecuador, 
Guatemala,  Italy,  Mexico,  Netherlands  (obsolete),  San 
Salvador,  Spain,  Sweden,  Tunis;  without  compensation 

— Bolivia,  Brazil,  Colombia,  Ecuador,  Guatemala,  Italy, 
Mexico,  San  Salvador;  to  be  paid  in  advance  — Bolivia; 
when  it  can  be  agreed  upon  — Italy. 

their  vessels  are  to  be  subjected  to  such  embargo  only  in 
cases  of  urgent  necessity,  and  an  equitable  indemnity 
shall  be  paid  — Prussia. 

their  books  and  papers  are  not  to  be  subjected  to  inspection 
without  the  order  of  a competent  legal  tribunal  — Bolivia, 
Hawaiian  Islands,  Hayti,  Two  Sicilies, 
the  citizens  of  each  country  are  to  have  a right  to  travel  in 
the  possessions  of  the  other  — Bolivia,  Hawaiian  Islands 
Italy,  Nicaragua,  Two  Sicilies, 
citizens  of  each  residing  in  the  territories  of  the  other  may 
intermarry  with  natives  — Nicaragua, 
may  enjoy  freedom  of  religious  belief,  respecting  at  the 
same  time  the  laws  and  usages  of  the  country  — Brazil, 
Bolivia,  China,  Ecuador,  Guatemala,  Hawaiian  Islands, 
Hayti,  Netherlands  (obsolete),  Colombia  (New  Grenada), 
Paraguay,  Argentine  Confederation, 
and  also  of  religious  worship,  on  conditions  as  named  in  the 
respective  treaties  (as  to  consuls  and  agents) — Algiers 
(obsolete),  Argentine  Confederation,  Colombia  (New 
Grenada),  Costa  Rica,  Dominican  Republic,  Honduras, 


324 


APPENDIX. 


Mexico,  Nicaragua,  Paraguay,  San  Salvador,  Sweden 
(see  Sweden  and  Norway). 

they  are  to  have  the  liberty  of  burial  — Argentine  Con- 
federation, Brazil,  Bolivia,  Colombia  (New  Grenada), 
Costa  Kica,  Dominican  Eepnblic,  Ecuador,  Guatemala, 
Hayti,  Honduras,  Netherlands  (obsolete),  Nicaragua, 
Mexico,  Paraguay,  San  Salvador,  Sweden  (see  Sweden 
and  Norway). 

on  the  breaking  out  of  a war  between  the  two  countries,  the 
citizens  of  each  in  the  country  of  the  other  may  remain  and 
continue  to  trade  so  long  as  they  behave  peaceably — Ar- 
gentine Confederation,  Paraguay,  Great  Britain  (obsolete). 

all  may  remain  whose  occupations  are  for  the  common  benefit 
of  mankind  — Italy,  Prussia. 

six  months  are  granted  to  merchants  and  citizens  to  arrange 
their  business  and  withdraw  their  effects  — Dominican 
Republic,  Hayti,  Two  Sicilies. 

succession  — the  dues  are  to  be  paid  as  those  paid  by  na- 
tives — Denmark,  German  Empire. 


INDEX 


Abandonment  of  citizenship  by  acts  of  citizens,  302. 
opinion  of  Hamilton  Fish,  302. 
opinion  of  James  Gr.  Blaine,  302. 
opinion  of  Thomas  F.  Bayard,  302. 

Aberdeen,  Lord,  on  citizenship  acquired  by  birth  in  English  prac- 
tice, 61. 

Act  of  Secretary  of  State  the  act  of  the  President,  188. 

Act  of  naturalization,  English,  68,  69. 

Act  for  protection  of  persons  and  property  in  Ireland,  247. 

Act  for  protection  of  persons  and  property  in  suspect  cases,  247. 
Acquisition  of  citizenship  in  middle  ages,  11. 

Adoption  of  children  of  foreign  birth  confers  no  citizenship,  295. 
Adoption  of  women  by  marriage  takes  husband^s  citizenship  297. 
Ages,  middle,  principles  which  governed  citizenship  in,  30. 
Alabama,  state  of,  recognizes  natural  rights  of  man,  22. 

Aliens.  Who  are,  49,  289. 

owe  a temporary  and  local  duty,  96,  247,  267,  290. 
protection  to,  when  in  United  States,  290. 

Allodialists.  AVho  were,  31. 

Allegiance,  what  constitutes,  291.  Opinion  of  Thomas  Jef- 
ferson, 76. 

Caleb  Cushing,  88. 

Alexander  McLeod,  88. 

term,  no  technical  meaning  in  United  States,  94. 

Amther’s  case,  on  right  of  expatriation,  147. 

Anderson,  N.  C.  Case  of  expulsion,  240. 

Annexation  of  territory,  citizenship  acquired  by,  215. 

Louisiana,  215,  216. 

Florida,  216. 

Mexico,  216. 

Alaska,  217. 

Argentine  Eepublic,  English  practice  with,  on  citizenship,  53. 
Argumiborn^s  case.  Citizenship  acquired  by  birth,  63. 

Ardut,  F.  A.  Case  of,  under  naturalization  treaty,  192. 

Arlich,  M.  Case  of,  under  naturalization  treaty,  221. , 


326 


INDEX. 


Austria,  English  practice  with,  on  citizenship,  55. 
Austro-Hungary.  Naturalization  treaty  with,  155,  175. 
Autonomy.  Every  independent  state  entitled  to,  32. 

Baah,  A.  E.  Case  of,  under  naturalization  treaty,  197. 

Baden,  naturalization  treaty  with,  152,  173. 

Bagur.  Case  of,  on  payment  of  taxes  while  abroad,  167. 
Banishment,  not  a forfeiture  of  citizenship,  303. 

Barnard.  Kule  laid  down  on  naturalization,  184. 

Batzell.  Case  of  naturalization.  No  treaty  existing,  258. 
Baumer.  Case  of,  under  naturalization  treaty,  200. 

Bavaria.  Naturalization  treaty  with,  154,  173. 

Bayard,  Thomas  F.,  on  protection  of  citizens  abroad,  171. 
on  right  of  expulsion  of  aliens,  243. 
on  abandonment  of  citizenship  by  residence  abroad,  302. 
Baysen,  S.  M.  Case  of  expulsion,  239. 

Belgium,  English  practice  with,  on  citizenship,  55. 

Belgium.  Eecognition  of  struggles  in,  by  other  countries,  34. 
Belgium.  Naturalization  treaty  with,  156,  175. 

Bernde,  J.  G.  Case  of,  under  naturalization  treaty,  205 . 
Bismarck,  Count,  on  right  of  expulsion  of  aliens,  240,  241. 
Black,  Jeremiah,  on  classification  of  citizens  in  United  States, 
158. 

on  right  of  expatriation,  93. 

on  refusal  of  protection  to  citizens  abroad,  169. 

Blaine,  James  G.,  on  military  service  in  Germany,  162. 
on  duties  of  aliens,  249. 
on  Israelites  in  Russia,  261. 

on  abandonment  of  citizenship  by  residence  abroad,  302. 
Block,  Elie,  case  of,  under  naturalization  treaty,  211. 

Bluntschli.  Rule  laid  down  on  citizenship,  17. 

On  citizenship  acquired  by  descent,  105. 

On  dual  citizenship,  114,  291. 
on  political  rights  of  aliens,  293. 

Boig,  Emilio,  Case  of  citizenship  with  Mexico,  268. 

Boetcher,  G.  E.  Case  of,  under  naturalization  treaty,  206. 
Boury,  M.  Case  of  citizenship  acquired  by  extraction,  121. 
Bosdet.  Case  of  citizenship  acquired  by  birth,  59. 

Boynton,  M.  Case  of  arrest  in  England,  247. 

Brazil,  English  practice  with,  on  citizenship,  56. 

Brink,  W.  Case  of,  under  naturalization  treaty,  206. 

Brophy,  W.  Case  of  arrest  in  England,  246. 

Buchanan,  James.  On  duties  of  aliens,  248,  290. 

Burlamaqui.  Rule  laid  down  on  citizenship,  15. 

Bynkerschoek.  Rule  laid  down  on  citizenship,  15. 

Busch,  Dr.,  opinion  on  citizenship  of  minor  children,  239. 
California,  state  of.  Recognizes  natural  rights  of  man,  22. 


INDEX. 


327 


Cass,  Lewis.  On  crimes  committed  before  emigration,  159. 
Castellan,  Jacob.  Case  of,  under  naturalization  treaty,  190. 
Castellan,  Henry.  Case  of,  under  naturalization  treaty,  190 
Cedergreen,  0.  M.  Case  of,  under  naturalization  treaty,  218. 
Certificates  for  trade  in  foreign  countries  in  middle  ages,  10. 
Cicero.  On  citizenship  in  Home,  3. 

On  dual  citizenship  in  Eome,  114. 

Citizens  of  United  States  entitled  to  protection  abroad,  162. 
abroad  must  obey  local  laws,  163. 
amenable  to  foreign  courts,  163. 
owe  a local  duty,  163. 
cannot  be  forced  into  foreign  army,  163. 
enjoy  rights  of  property,  16^3. 
naturalized  abroad  become  aliens,  178. 
abroad,  lose  protection  by  long  residence,  303. 

Citizenship  among  the  Romans,  1. 

among  the  Romans  conferred  by  charter,  3. 
in  United  States.  Rules  which  govern,  17,  18. 
in  Europe.  How  affected  by  French  Revolution,  32. 

Declaration  of  Independence,  32. 

Definition  of.  Equal  rights  and  protection  at  home  and 
abroad,  48. 

Uo  classification  of,  at  home  or  abroad  by  laws  of  United 
States,  49,  158. 

acquired  by  locality  of  birth  the  English  rule,  50. 
acquired  by.  English  rule  not  the  rule  in  United  States, 
51,  71,  96. 

acquired  by  locality  of  birth  of  feudal  origin,  71,  72. 

in  United  States  from  1783  to  1836.  Who  were  citizens?  80. 

in  1836.  Who  were  citizens?  88. 

prior  to  1868.  Who  were  citizens?  91. 

rule  which  governed  in  1868,  95. 

acquired  by  extraction,  the  rule  in  Austria,  106. 

Belgium,  106. 

Denmark,  107. 

France,  106. 

Holland,  107. 

Italy,  107. 

Norway  and  Sweden,  107. 

Prussia,  107. 

Spain,  107. 

Switzerland,  107. 

acquired  by  extraction  a natural  law,  109. 
in  the  United  States,  109, 129. 
case  of  Blesh,  J.  C.,  116. 

Boury,  F.,  121. 


328 


INDEX. 


Citizenship  acquired  by  extraction.  Cases  of  Drevet,  Charles,  118; 
Emden,  Robert,  122;  Greisser,  Richard,  110;  Hausding,  Louis, 
109;  Haus,  M.,  110,  111;  Heinrich, F.,  120;  Jacob,  A.  R.,  117; 
Kroemer,  0.  W.,  116;  Semberger,  D.,  117;  Pearson,  J.  F.,  124; 
Sharboro,  J.  P.,  123;  Speck,  Josef,  123;  Sheibert,  C.  J.,  115; 
Steinkauler,  F.,  113;  Verdelet,  E.  A.,  119;  Weigand,  Geo.,  115; 
Wurgletto,  A.,  122. 

Citizenship,  dual,  not  practicable,  114. 

by  naturalization  in  the  United  States,  129. 

Prerequisites  to  acquisition  of,  132. 
qualified,  not  practicable,  132,  133. 

acquired  in  United  States,  no  protection  to  crime  committed 
before  emigration,  158. 
by  service  in  the  army,  301 . 

Cockburn,  chief  justice,  on  dual  citizenship,  114. 

on  citizenship  of  widows,  299. 

Code  Napoleon.  Effect  of,  on  principle  of  jus  soli,  105. 
Clarendon,  Lord,  on  citizenship  acquired  by  locality  of  birth, 
57,  62. 

Classification  of  citizens  in  middle  ages,  9 . 

^ of  United  States  when  abroad,  158,  228. 
in  United  States,  158. 

Claims  for  damages  on  foreign  countries,  305. 
how  presented,  305 . 

Colorado.  State  of,  recognizes  natural  rights  of  man,  23 . 
Columbia.  Citizenship  in,  286,  287. 

Colsky,  Louis.  Case  of  naturalization,  no  treaty,  258. 
Commerce  between  countries  in  middle  ages,  9 . 

Commercial  classes  in  middle  ages,  10. 

Common  law.  There  is  none  for  United  States,  75. 

of  England  not  law  of  nations,  101 . 

Cordes,  Edward.  Case  of,  under  naturalization  treaty,  207. 
Cormick,  J . Case  of  arrest  in  England,  246 . 

Contract.  Government  of  United  States  contract  between  citi- 
zens, 90. 

Cranz.  Case  of  protection  abroad,  171. 

Crossthwaite . Case  of  citizenship  acquired  by  birth,  62. 
Cushing,  Caleb,  on  principle  of  allegiance,  88 . 

on  right  of  expatriation,  93,  146. 

Dalton,  J . Case  of  arrest  in  England,  246 . 

Daly,  J . F . Case  of  arrest  in  England,  246 . 

Declaration  of  Independence  recognizes  natural  rights  of  man,  2l, 

22. 

Declaration  of  intent.  Force  of,  131. 

does  not  confer  citizenship  in  United  States,  139. 
may  confer  right  to  protection  abroad,  140,  142 . 
does  not  confer  right  to  demand  passport,  302 . 


INDEX. 


329 


Decisions  of  courts  on  citizenship  by  locality  of  birth,  74. 

De  Martens.  Eule  laid  down  on  acquisition  of  citizenship,  17. 
Denmark.  English  practice  with  on  citizenship,  56. 

Denmark,  naturalization  treaty  with,  154,  174. 

Department  of  State . Agency  of  President  of  United  States, 
188. 

Department  of  State . Can  inquire  into  fraudulent  naturaliza- 
tion, 143,144. 

Dignity  of  States.  How  upheld,  37. 

Divorce . Citizenship  of  women  after,  299 . 

Drevet,  Charles . Case  of  citizenship  acquired  by  extraction,  118 . 
Druids  as  sources  of  law  in  Germany,  30 . 

Duties  to  a State  prescribed  by  positive  law,  45 . 

Duties  of  a citizen,  correlative  to  inherent  rights,  83-86. 
Equador.  Naturalization  treaty  with,  157,  175. 

Effect  of  invasion  of  Barbarians  on  citizenship  in  Kome,  4. 
generally,  4. 

Eggers,  Ernest.  Case  of,  under  naturalization  treaty,  203. 
Egypt.  Principles  which  governed  citizenship  in,  30. 

Election.  Eight  of,  on  reaching  majority,  89. 

Emden,  Eobert.  Case  of  citizenship  acquired  by  extraction,  122.  . ' 
Emigration  in  middle  ages,  6. 
with  permission,  7. 
without  permission,  7. 
recognized  as  a right,  11. 

Emigration  rules  which  govern  in  Eussia,  259. 

Turkey,  284. 

English  rule  of  qualified  naturalization,  291. 

Equality  of  countries  in  international  practice,  37. 

Evarts,  Wm.  M.  On  Israelites  in  Eussia,  260. 

On  loss  of  right  to  protection  abroad,  304. 

Everett,  Edward.  On  crimes  committed  before  emigration,  159. 
Executive  branch  of  government,  48. 

Exercise  of  rights  devolve  equally  on  all  citizens,  46. 

Expatriation,  rule  of.  Opinion  of  Jeremiah  Black,  93,  146. 
Lewis  Cass,  93. 

Caleb  Cushing,  93,  146. 

William  L.  Marcy,  93. 

Marshall,  C.  J.,  78. 

Williams,  J.  M.,  146. 

Expatriation  rule  in  Massachusetts,  78. 

Virginia,  79,  91. 

Kentucky,  91. 

Pennsylvania,  92. 

Expatriation,  rule  of,  130,  228. 

Eule  in  United  States  not  extraterritorial,  130,  164. 

42 


330 


INDEX. 


Expatriation.  Presumption  is  that  citizen  has  right  of,  131, 
228 

Definition  of,  148. 

Right  of,  recognized  by  treaty,  148. 
complete,  works  change  of  citizenship,  169 
Expulsion.  Right  of,  228. 

Expulsion  from  Schleswig-Holstein,  239. 
cases,  239. 

Expulsion.  Right  of,  maintained  in  United  States,  242. 
opinion  of  Count  Bismarck,  240,  241. 
in  Germany,  242. 

Extraction,  not  locality  of  birth,  confers  citizenship,  85. 
Principle  of,  a law  of  nature,  109. 

the  rule  which  governs  acquisition  of  citizenship  in  Europe, 
106,  107. 

Practice  of  United  States  on  citizenship  acquired  by,  109- 

122. 

Feudal  principle  of  citizenship  supplants  jus  naturale  of 
Romans,  4. 

Ferry,  Jules,  on  naturalization  abroad,  254,  255. 

Field  on  citizenship  acquired  by  descent,  105. 
on  nationality  of  women,  297,  298. 
on  dual  citizenship,  114. 

Finland.  Emigration  from,  permitted,  263. 

Fish,  Hamilton,  on  adoption  of  foreign  children,  295. 
on  nationality  of  women,  297,  298. 
on  abandonment  of  citizenship,  302. 
on  loss  of  right  to  protection  abroad,  303. 

Fiore  on  citizenship  acquired  by  descent,  105. 

Florida.  State  of,  recognizes  natural  right  by  man,  23. 

Foichat,  T.  H.  Case  of  naturalization.  No  treaty,  253. 

Foelix.  Rule  laid  down  on  acquisition  of  citizenship,  15. 
on  dual  citizenship,  115. 
on  duties  of  aliens,  267. 

Fogarty,  M.  B.  Case  of,  arrest  in  England,  246. 

France,  English  practice  with,  on  citizenship,  57. 

Fresh,  Hilar.  Case  of  under  naturalization  treaty,  196. 
Frelinghuysen,  F.,  on  right  of  expatriation,  171. 

on  nationality  of  women,  298 . 

Frist.  Rule  laid  down  on  acquisition  of  citizenship,  17. 
Furgurson.  On  citizenship  acquired  by  descent,  105 
Foreman,  W.  Case  of  citizenship  by  birth  in  English  practice, 
61. 

Gad,  Meyer.  Case  of  expulsion,  242,  243. 

Germany.  English  practice  with,  on  citizenship,  58. 

Germany.  Expulsion  from,  242. 


INDEX. 


331 


Goldner,  Isaac.  Case  of  naturalization.  No  treaty,  258. 
Granville,  Lord.  On  principle  of  treaties,  40. 

Granville,  Lord.  On  duties  of  aliens,  248. 

Grenville,  Lord,  on  naturalization  in  United  States,  77. 

Griers,  M.  de.  On  rights  of  Israelites  in  Eussia,  261. 

Grotius.  Eule  laid  down  on  citizenship,  14. 

Guatemala.  English  practice  with,  on  citizenship,  59. 

Hanse  Towns.  English  practice  with,  on  citizenship,  58. 
Hagerdorn,  J.  C.  Case  of,  under  naturalization  treaty,  206. 
Halleck  on  rights  of  aliens,  294. 

Hans,  M.  Case  of  citizenship  acquired  by  extraction,  110. 
Hansding,  Louis.  Case  of  citizenship  acquired  bv  extraction,! 
109. 

Harcourt,  Sir  Vernon,  on  citizenship  acquired  by  locality  of 
birth,  72. 

Hart,  M.  Case  of  arrest  in  England,  247. 

Hawaiian  Islands.  Citizenship  in,  287. 

Heffter,  rule  laid  down  on  acquisition  of  citizenship,  16. 
on  citizenship  acquired  by  descent,  105. 
on  dual  citizenship,  291. 

Held,  Gustav.  Case  of,  under  naturalization  treaty,  208. 
Henrichs,  F.  Case  of  citizenship  acquired  by  extraction,  120. 
Henkes,  C.  Case  of,  under  naturalization  treaty,  205. 
Hessen-Darmstadt.  Naturalization  treaty  with,  154. 

Hirsch,  Marcus.  Case  of,  under  naturalization  treaty,  197. 
Hoeriger.  Meaning  of  term  in  practice  of  middle  ages,  31. 
Horstman,  B.  Case  of,  under  naturalization  treaty,  207. 
Humbert,  P.  Case  of,  under  naturalization  treaty,  194. 
Hungary.  Eecognition  of  struggles  in,  33. 

Illinois.  State  of,  recognizes  natural  rights  of  man,  23. 
Independence  of  State.  Principle  of  Emperor  William  of  Ger 
many,  35. 

Independence.  Every  country  must  enjoy  it,  32. 

India.  Principles  which  govern  citizenship  in,  30. 

Indiana.  State  of,  recognizes  natural  rights  of  man,  24. 

Inquiry  into  existing  obligations  before  emigration,  47. 

right  of,  purely  autonomous,  47. 

Intent.  Declaration  of,  to  become  citizen,  131. 
does  not  confer  citizenship,  139. 
may  give  right  to  protection  abroad,  140,  142. 

International  law.  Eules  of,  derived  from,  101. 

Intercourse  between  countries  in  middle  ages,  7. 

Interference  in  Mexico  by  Napoleon  III,  34. 

Iowa.  State  of,  recognizes  natural  rights  of  man,  24. 

Ireland.  Act  for  protection  of  property  and  persons  in,  247. 
Israelites  not  allowed  in  Eussia,  261. 


332 


INDEX. 


Israelites.  Opinion  of  J.  Gr.  Blaine  on,  261. 

Opinion  of  Wm.  Evarts  on,  260. 

Opinion  of  M.  de  Griers  on,  261. 

Italy.  Recognition  of  its  independence,  32. 

Italy.  English  practice  with,  on  citizenship,  60. 

Jacobson,  D.  Case  of,  under  naturalization  treaty,  197. 

Jacob,  A.  R.  Case  of  citizenship  acquired  by  extraction,  117. 
Jantzen,  C.  E.  Case  of,  under  naturalization  treaty,  196. 
Jefferson,  Thomas,  on  expatriation,  76. 

Jepsen,  P.  Case  of  expulsion,  240. 

Jessen,  H.  P.  Case  of  expulsion,  240. 

Jones,  C.  P.  Case  of  citizenship  with  Hawaiian  Islands,  287. 
Joppen,  I.  G.  Case  of  expulsion,  239. 

Judicial  branch  of  government,  48. 

Jus  Albanagii,  of  middle  ages,  12. 

Jus  naturale.  Basis  of  relation  of  citizens  to  Roman  state,  2. 
Jus  naturale,  lost  as  principle  on  invasion  of  Barbarians,  4,  31. 
Jus  soli.  English  rule  of,  not  adopted  in  United  States,  80,  105. 
Jus  soli.  Principle  of.  How  affected  by  Code  Napoleon,  105. 
Kansas.  State  of,  recognizes  natural  rights  of  man,  24. 
Kentucky.  State  of,  recognizes  natural  rights  of  man,  25. 
Klagges,  Frank.  Case  of,  under  naturalization  treaty,  204. 
Klan,  Andrew.  Case  of,  under  naturalization  treaty,  217. 

Kloss,  E.  F.  Case  of,  under  naturalization  treaty,  198. 

Knocke,  John  P.  Case  of  naturalization.  No  treaty,  180, 
181. 

Kriegal,  Gustav.  Case  of,  under  naturalization  treaty,  198. 
Kroemer,  C.  W.  Case  of  citizenship  acquired  by  extraction,  116. 
Landau.  Case  of.  On  protection  abroad,  171. 

Largomorisino,  F.  Case  of,  under  naturalization.  No  treaty, 
251. 

Laws.  Each  country  must  have,  44. 
natural,  are  universal,  44. 
positive,  are  territorial,  44. 

of  nature  prescribe  no  particular  locality  for  man,  85. 

Law  itself  does  not  change  citizenship,  164. 

Law,  common.  There  is  none  for  United  States,  74. 

of  England,  not  law  of  nations,  101. 

Lebrone,  Victor.  Case  of  naturalization.  No  treaty,  256. 
Legislative  branch  of  government,  48. 

Lemberger,  H.  Case  of  citizenship  acquired  by  extraction,  117. 
Levinson,  C.  Case  of,  under  naturalization  treaty,  198. 

Lieber,  Franz.  On  citizenship  acquired  by  law  of  Mexico,  264. 
Loeb,  Jacob.  Case  of,  under  naturalization  treaty,  212. 
Louisiana.  State  of,  recognizes  natural  rights  of  man,  25. 
Lowell,  J.  R.,  on  citizenship,  how  acquired,  249. 


INDEX. 


333 


Malsbury.  On  citizenship  acquired  by  birth  in  English  prac- 
tice, 58. 

Mamelsdorf,  E.  Case  of,  under  naturalization  treaty,  199. 

Man  by  nature  a dependent  being,  20. 

Man  essential  to  good  of  society,  40. 

Man  enters  society  to  preserve  his  welfare,  41. 

Man  entering  society  permits  restrictions  on  his  natural  rights, 

41.  , 

Man  enters  society  by  positive  law,  41. 

Man  becomes  a member  of  society  by  contract,  41. 

Man;  what  he  surrenders  to  society  when  he  becomes  a member, 

42. 

Man  reserves  to  himself  certain  inalienable  rights,  42. 

Man  is  either  a citizen  or  an  alien,  49. 

Manteuffel.  On  citizenship  acquired  by  naturalization,  186. 

criticism  on  naturalization  law  of  United  States,  186. 
Marcy,  Wm.  L.  On  right  of  expatriation,  93. 

on  crimes  committed  before  emigration,  158. 

Marriage  of  citizens  of  United  States  to  foreigners,  298. 

Marshall,  chief  justice,  on  right  of  expatriation,  78. 

Maryland,  state  of,  recognizes  natural  rights  of  man,  25. 
Massachusetts,  state  of,  recognizes  natural  rights  of  man,  25. 
Matriculation  in  Mexico,  principles  of,  267,  268. 

McLeod,  Alexander,  on  theory  of  allegiance,  87. 

McCormick,  J.  K.  Case  of,  on  naturalization,  no  treaty,  245 
McSweeney,  D.  Case  of  arrest  in  England,  246. 

Mely,  August.  Case  of,  under  naturalization  treaty,  209. 
McEnery,  D.  Case  of  arrest  in  England,  246. 

Members  of  a society  should  enjoy  equal  rights,  46,  48. 

Men  are  created  equal  with  certain  inalienable  rights,  71. 
Mercier,  M.,  on  French  citizens  in  United  States,  294. 

Mexico.  Practice  with,  on  naturalization,  263. 

Mexico.  Laws  relating  to  foreigners  in,  269-283. 

Michigan.  State  of,  recognizes  natural  rights  of  man,  26. 
Military  service  in  middle  ages,  11. 

Obligatory  in  Europe,  159. 
in  Germany.  Eule  of,  161,  182. 
in  Italy.  Eule  of,  252,  253. 

Minnesota.  State  of,  recognizes  natural  rights  of  man,  26. 
Minor  children.  How  affected  by  naturalization  of  parent,  133, 
134,  135. 

Missouri.  State  of,  recognizes  natural  rights  of  man,  26. 
Montaya.  Case  of  citizenship  acquired  by  locality  of  birth,  56. 
Muller,  C.  K.  Case  of,  under  naturalization  treaty,  205. 
Mumbour,  H.  Case  of,  under  naturalization  treaty,  192. 
Nationality.  Principle  of  Sir  Vernon  Harcourt,  72,  102. 

Loss  of,  in  Germany,  208,  209. 


334 


INDEX. 


Naturalization.  Effect  of  on  minor  children,  133,  135,  232,  234. 
Effect  of,  on  wife  of  applicant,  138. 

Treaty  of,  not  subordinate  to  act  of  Congress,  149. 

Treaty,  effect  of,  on  existing  statutes,  150. 
treaty  with  Austro- Hungary,  155,  175. 

Baden,  152,  173. 

Bavaria,  154,  173. 

Belgium,  156,  175. 

Denmark,  154,  174. 

Hessen-Darmstadt,  154,  172. 

Wurtemburg,  153,  172. 

Eules  of,  compared,  157,  177. 

Citizens  by,  170. 

rules  different  on  return  to  country  of  origin,  171. 
contemplates  residence  in  country  of  adoption,  171. 
treaties,  effect  of,  on  citizens  in  country  of  origin,  179. 
Wheaton.  Kule  on,  180. 

Barnard.  Eule  on,  184. 

Position  of  Prussian  government  on,  186. 

Opinion  of  Baron  Manteuffel  on,  186. 

Wright.  Eule  on,  186. 
treaties.  Practice  under,  188. 

Each  case  to  be  decided  on  its  own  merits,  188. 

Decision  of  State  department  on  the  decision  of  President, 
188. 

case  decided  in  effect  by  the  President,  188. 
cases  under  treaties,  189  — 221 . 
deductions  from  the  practice,  223. 

German  rule  of,  acquiesced  in  by  the  United  States,  232. 

fraudulent,  inquired  into,  143. 

in  United  States,  opinion  of  Lord  Grenville  on,  77. 

Natural  law  of  man  universal,  44. 

Nebraska.  State  of,  recognizes  natural  rights  of  man,' 26. 

North  Carolina.  State  of,  recognizes  natural  rights  of  man,  27. 
Nevada.  State  of,  recognizes  natural  rights  of  man,  26. 

New  Hampshire.  State  of,  recognizes  natural  rights  of  man,  27. 
New  Jersey.  State  of,  recognizes  natural  rights  of  man,  27. 
Newmarch,  M.  A.  Case  of,  under  naturalization  treaty,  195. 
Nesselrode,  Prince.  On  aliens’  claim  for  loss  of  property,  292. 
Nicolson,  A.  E.  Case  of  expulsion,  239. 

Nobility  in  Middle  Ages,  10. 

Norway,  Sweden.  English  practice  with,  on  citizenship,  61. 
Oath  to  support  constitution  does  not  imply  allegiance,  94. 
Obligations  of  Eoman  citizens  to  state,  2. 
of  Barbarians  to  their  leaders,  4. 
as  to  property,  real  and  personal,  4. 


INDEX. 


335 


Obligations.  A country  can  have  no  hidden  obligations  for  its 
citizens,  46. 

existing.  How  inquired  into,  47. 

Principle  which  governs  unfulfilled,  148. 
to  perform  military  service  in  Europe,  159. 
arising  after  immigration  not  to  be  performed,  161. 
to  country  cannot  be  continuous,  161,  162. 
unfulfilled  before  immigration,  223. 

O’Connor.  Case  of  arrest  in  England,  246,  247. 

Oench,  Henry.  Case  of,  on  crimes  committed  before  emigra- 
tion, 158. 

Ohio.  State  of,  recognizes  natural  rights  of  man,  27. 
O’Mahoney,  H.  Case  of  arrest  in  England,  247. 

Option.  Eight  of,  in  citizens  under  treaty  of  1794,  63. 
as  to  citizenship  on  reaching  majority,  89. 
in  citizens  under  treaty  of  1803,  91. 
in  citizens  under  treaty  of  1819,  91. 
under  Erance-Cerman  treaty  1870,  210. 

Oregon.  State  of,  recognizes  natural  rights  of  man,  28. 
Orientals.  Principles  which  governed  citizenship  among,  30. 
Origin  of  state  in  man,  20. 

Organization  of  governments  among  Barbarians,  5. 

Ottoman  legislation  on  citizenship,  284. 

Palmerston,  Lord,  on  citizenship  bv  birth  in  English  practice, 
54,  55,  58,  60. 

Passports,  certificates  of  protection,  302. 

Every  citizen  entitled  to,  302. 

Pearson,  S.  E.  Case  of  citizenship  with  China,  124. 

Peel,  Sir  Kobert,  on  citizenship  by  birth  in  English  practice,  53. 
Pennsylvania.  State  of,  recognizes  natural  rights  of  man,  28. 
Pepin,  Henry.  Case  of  naturalization.  Ho  treaty,  255. 
Performance  of  duties  and  exercise  of  rights  equal  to  all,  46. 
Phillimore  on  dual  citizenship,  114. 

on  citizenship  of  women  after  divorce,  299. 
on  duties  of  aliens,  248. 

Poland.  Kecognition  of  struggles  in,  33. 

Annihilation  of,  40,  41. 

Portugal.  English  practice  with,  on  citizenship,  61. 

Positive  law  territorial  in  effect,  44. 

Practice  under  English  rule,  citizenship  acquired  by  birth,  53. 
Practice  under  English  rule,  of  England  with  Argentine  Kepub- 
lic,  53. 

Austria,  55. 

Belgium,  55. 

Brazil,  56. 

Colombia,  56. 


336 


INDEX. 


Practice  under  English  rule,  of  England  with  Denmark,  56. 
France,  57. 

Germany,  58. 

Guatemala,  59. 

Hause  Towns,  58. 

Italy,  60. 

Norway-Sweden,  61. 

Portugal,  61. 

Prussia,  62. 

Spain,  62. 

United  States,  63. 

Prerequisites  necessary  to  citizenship,  132. 

President  of  United  States  acts  through  his  secretaries,  188. 
Presumption  of  loss  of  citizenship  after  two  years’  residence 
abroad,  223. 

Principle  citizenship  in  England  not  adopted  by  United  States,  71. 

of  int.  law  in  United  States  not  taken  from  English  law,  101. 
Protection  to  citizens  of  United  States  when  abroad,  151. 

when  denied,  does  not  involve  loss  of  citizenship,  165, 169. 
rebuttal  testimony  permitted,  169. 
to  aliens  in  United  States,  289. 

Property.  Eights  of  aliens  to  hold,  292. 

loss  to,  by  aliens  no  compensation  for,  292,  293. 

Prussia.  English  practice  with,  on  citizenship,  62. 

Eights  of  nation  precede  stipulations  of  treaty,  40. 
Puffendorf.  Eule  laid  down  on  citizenship,  14. 

Qualified  citizenship  not  practicable,  132,  133. 

Eainals.  Case  of  citizenship  by  locality  of  birth,  56. 

Eebuttal  testimony.  Importance  of,  on  citizenship,  243,  244. 
Eecognition  of  a state’s  autonomy  may  be  premature,  33. 

United  States  by  France,  33. 

South  American  states  by  England,  33. 

Greece  by  England,  France  and  Eussia,  33. 

Belgium  by  the  five  powers  of  Europe,  33. 

Italy  by  England,  33. 
a state’s  autonomy  can  be  demanded,  33. 
a state’s  autonomy  can  be  premature,  33. 

Eeewarts.  Case  of,  expulsion,  239. 

Keichart,  A.  Case  of,  on  rebuttal  testimony,  245*. 
Eenunciation.  Loss  of  citizenship  by,  245. 

Eesidence.  Two  years  may  be  loss  of  citizenship  with  Ger- 
many, 243. 

meaning  of,  different  from  domicile,  234. 

Frederick  Frelinghuysen  on,  in  United  States,  235. 

Eohlffs,  H.  Case  of  expulsion,  240. 

C.  Case  of  expulsion,  240. 


INDEX. 


337 


Eowe,  J.  S.  Case  of  naturalization.  No  treaty,  250,  251. 
Russia.  Rule  of  expatriation  in,  259. 

Punishment  by  expatriation,  259. 

Israelites  not  allowed  in,  262. 

Rutherforth.  Rule  laid  down  on  citizenship,  16. 

Russell,  Lord  John,  on  citizenship  by  birth  in  English  practice, 
56,  57. 

Salamonske,  W.  Case  of,  under  naturalization  treaty,  199. 
Sandt,  H.  V.  Case  of  naturalization.  No  treaty,  184. 

Santos,  T.  K.  Case  of  naturalization.  No  treaty,  222. 

Scola,  John.  Case  of,  under  naturalization  treaty,  200. 

Schang,  J.  P.  Case  of,  under  naturalization  treaty,  214. 
Schweitzer,  Gr.  Case  of,  under  naturalization  treaty,  220. 
Secretary  of  State  the  agent  of  the  President  of  United  States,  188. 
Seward,  Wm.  H.,  on  political  growth  of  America,  34. 

Seward,  on  loss  of  protection  abroad,  304. 

Sharboro,  T.  P.  Case  of  citizenship  acquired  by  extraction,  123. 
Sheibert,  C.  T.  Case  of  citizenship  acquired  by  extraction,  115. 
Sigbjornsen,  P.  Case  of,  under  naturalization  treaty,  219. 
Slattery,  P.  Case  of  arrest  in  England,  247. 

Smith,  T.  W.  Case  of  citizenship  with  Mexico,  268. 
Sovereigns.  Pledge  of  faith  between,  148. 

Society.  Man  enters  an  institution  of  man,  21,  34. 
is  a civilized  institution,  21. 
common  term,  applicable  to  state  or  country,  21. 
must  be  independent,  32. 
recognized  by  other  countries,  32. 

Different  forms  of,  34. 

Each  the  equal  of  the  other  in  international  sense,  37. 
Dignity  of  rank  of,  37. 

Annihilation  of,  40. 

What  man  reserves  to  himself  when  he  enters,  42. 
must  have  laws,  44. 

has  no  hidden  obligations  for  its  citizens,  46. 

Members  of,  should  enjoy  equal  rights,  46. 

South  Carolina.  State  of,  recognizes  natural  rights  of  man,  28. 
Speck,  Josef.  Case  of  citizenship  acquired  by  extraction,  123. 
State.  Common  term  applicable  to  society,  21. 

Statute  applies  equally  to  citizens  and  aliens,  98. 

Construction  of,  100,  101,  102,  105,  109. 
on  citizenship,  must  conform  to  international  practice,  100, 
Steinkauler.  Case  of  citizenship  by  extraction,  113. 

Case  of  dual  citizenship,  113. 

Stein,  Mose.  Case  of  fraudulent  naturalization,  143. 

Spain.  English  practice  with,  on  citizenship,  62. 

Taxes,  payment  of,  essential  to  protection  abroad,  166,  167. 


338 


INDEX. 


Taxes.  Opinion  of  Hamilton  Fisli,  166. 

Opinion  of  Frederick  Frelinghuysen,  166. 

Taxacher,  V.  Case  of,  under  naturalization  treaty,  220.  ' 

Texas.  State  of,  recognizes  natural  rights  of  man,  29. 
Testimony,  rebuttal.  Importance  of,  on  citizenship,  169,  243, 
244. 

Topaz,  M.  Case  of  adoption  of  woman  by  marriage,  296. 
Treaty,  what  is,  39. 
nullification  of,  37. 

Lord  Grenville  on,  40. 

of  1783,  between  England  and  United  States,'  effect  of,  63. 

of  1794,  on  citizenship,  63. 

of  1794,  to  whom  applicable,  65. 

of  1870,  with  Great  Britain,  effect  of,  68. 

supreme  law  in  United  States,  148. 

of  naturalization,  not  subordinate  to  act  of  Congress,  149. 

effect  of,  on  existing  statutes,  150. 

is  a rule  of  law  of  international  import,  202. 

Trading  certificates  in  middle  ages,  10. 

Turkey.  Citizenship  in,  how  acquired,  283,  284. 

Emigration  from,  prohibited,  284. 

Typhonius,  on  right  to  choose  citizenship,  3. 

United  States.  Recognition  of,  by  France,  32. 
cannot  legislate  for  foreign  countries,  162. 
cannot  force  its  citizens  to  become  citizens  elsewhere,  165. 
English  practice  with,  on  citizenship,  63. 

'Vattel.  Rule  laid  down  on  acquisition  of  citizenship,  16,  103. 
on  dual  citizenship,  115. 

Venezuela.  Rule  of  acquisition  of  citizenship  in,  265. 

Verdelet,  E.  A.  Case  of  naturalization.  No  treaty,  256. 

Case  of  citizenship  acquired  by  extraction,  119. 

Vermont.  State  of,  recognizes  natural  rights  of  man,  29. 

Vertus.  Case  of  citizenship  acquired  by  locality  of  birth,  60. 
Villinger,  G.  Case  of,  under  naturalization  treaty,  200. 
Virginia.  State  of,  recognizes  natural  rights  of  man,  29. 
Volition.  Exercise  of,  essential  to  change  of  citizenship,  43, 164. 
Vopel,  T.  Case  of,  under  naturalization  treaty,  193. 

Wheaton,  Henry,  on  naturalization,  180. 

Widowhood.  Former  citizenship  does  not  revert,  299. 

opinion  of  Cockburn,  chief  justice,  299. 

Woman^s  nationality  in  case  of  divorce,  299. 

Woman  abandons  her  citizenship  by  marriage,  300. 

Woman  does  not  lose  her  citizenship  by  death  of  husband,  300. 
Yeomanry  in  middle  ages,  10. 

Zimmer,  Martin.  Case  of,  under  naturalization  treaty,  203. 
Zuber,  Wm.  L.  Case  of  citizenship  with  Mexico,  263. 


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